J-A11045-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
UNCOMMON INDIVIDUAL FOUNDATION IN THE SUPERIOR COURT OF
AND RICHARD CARUSO PENNSYLVANIA
Appellants
v.
BRENDA-JAYNE WILTSHIRE
No. 1331 EDA 2015
Appeal from the Order Entered April 21, 2015
in the Court of Common Pleas of Delaware County Civil Division
at No(s): 2015-000404
BEFORE: SHOGAN, MUNDY, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED JULY 08, 2016
Appellants, Uncommon Individual Foundation (“UIF”) and Richard
Caruso (“Caruso”), appeal from the order of the Delaware County Court of
Common Pleas denying their petition to strike, set aside, or modify an
arbitration award in favor of Appellee, Brenda-Jayne Wiltshire.1 Appellants
claim the arbitration panel (1) entered an award on matters outside the
scope of the arbitration agreement, specifically, ownership of intellectual
property related to “happinessPilot” (“‘happinessPilot’-IP”) (2) denied
*
Former Justice specially assigned to the Superior Court.
1
Appellants also requested that the arbitration record be opened for legal
insufficiency. Moreover, in a footnote in their petition, they requested
modification of the award to reflect that Caruso was not individually liable.
The trial court did not grant that request and we retain the plural form of
Appellants for the purposes of this memorandum. We also note that the trial
court separately granted Appellee’s cross-petition to confirm the arbitration
award, enter judgment, and award attorney fees.
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Appellants discovery and a full and fair hearing on the merits, (3) ignored
uncontested testimony and controlling law regarding ownership of the
“happinessPilot”-IP, (4) ignored evidence and controlling law regarding
Appellee’s failure to mitigate damages, and (5) entered an award that was
based on contradictory findings and too vague to be enforceable. We affirm.
The factual background to this appeal is as follows. Caruso is the
founder, chairman, and president of UIF, a non-profit corporation organized
with a “focus on people helping people, to create mentoring projects, and to
help people live in a positive way.” Final Award in Arbitration (“Award”),
12/18/14, at 5 n.3. Additionally, Caruso was the president of The Provco
Group, an organization that was not a party in the underlying arbitration
proceeding, but which maintained a condominium at 210 Rittenhouse
Square, where Appellee resided. Caruso and Appellee met in the 1990’s,
and, in 1996, Caruso assisted Appellee in maintaining her residence at the
condominium. In 1999, Appellee began updating UIF’s website. In 2002
or 2003, UIF began paying Appellee a salary. Appellee and UIF entered into
an employment agreement effective January 1, 2007, designating Appellee
as a director of development.
In June 2010, Appellee took a leave of absence from UIF, although UIF
continued to pay her salary and provide benefits. In mid- to late-2010,
while on leave, Appellee began the “happinessPilot” project, which was
described as “a web-based delivery of digital and non-digital material
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designed to allow a user to navigate a ‘flight plan’ to personal happiness.”
Id. at 2. In February 2011, Appellee contacted Rosica Daskalova to assist
in the project. In May 2011, Appellee informed Caruso of the project and
thereafter reported periodically to him. In June 2011, UIF reimbursed
Daskalova for her previous work on the project and began paying her a
stipend. In August 2011, UIF assigned a full-time code writer, Scott
Bradley, to the “happinessPilot” project.
Appellee and UIF entered into employment agreement effective
January 1, 2012 (“2012 employment agreement”). Appellee was designated
the Chief Happiness Pilot Development and Marketing Officer, and was
responsible for:
a) Immediately transferring all the Happiness Pilot URL’s to
the Employer GoDaddy URL account and agreeing that the
Employer is the exclusive owner of all such URL’s; [and]
b) Development of the Employer’s Happiness Pilot
Website[.]
2012 Employment Agreement, 1/1/12, at ¶ 2. Under the agreement,
Appellee was to serve “in the capacity of Founder, Chairman and CEO of
such Happiness Pilot project and its related activities.” Id.
The 2012 Employment Agreement contained the following arbitration
provision:
Except for injunctive relief as provided in paragraph 7
above, any disputes which may arise regarding the
interpretation, application or enforcement of this
Agreement (including any questions whether a dispute is
arbitrable) shall be settled by final and binding arbitration.
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The arbitration shall be carried out by an arbitration panel
of three members of the American Arbitration Association
located in Western New York all of whom shall be
independent and impartial and none of whom shall be
appointed by either party, and shall be conducted in
accordance with the commercial rules of that Association.
Id. at ¶ 9.
Relations between Appellee and UIF broke down in 2014. UIF stopped
paying her salary, terminated her benefits, and declared her in breach of the
2012 employment agreement. Appellee could no longer access
“happinessPilot.”
On March 19, 2014, Appellee filed a demand for arbitration in the
American Arbitration Association.2 Appellee asserted, in relevant part: (1)
she was the exclusive owner of “happinessPilot”; (2) UIF misappropriated
“happinessPilot”; (3) UIF breached the 2012 employment agreement; and
(4) she was entitled to $1.4 million in damages for unpaid salary, benefits,
loss of opportunity, and continued development costs for the balance of the
2
Appellee, when demanding arbitration, requested the panel be located in
Philadelphia. She acknowledged that paragraph 9 of the 2012 employment
agreement referred to venue in “Western New York.” Appellee’s Statement
of Claim, 3/19/14, at 2. However, she asserted that description was
ambiguous because no American Arbitration Association office existed in the
area specified in the agreement and that Philadelphia was convenient for the
parties. Id. The venue of the arbitration was not specified in the record.
We again note that Appellants filed their petition to strike, set aside, or
modify the award in Delaware County. See 42 Pa.C.S. §§ 7319(1), 7342(a).
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agreement’s term.3 See Award at 2; Appellee’s Statement of Claim,
3/19/14 at 7. Appellants answered Appellee’s statement of claims and
requested that “this matter be decided in [their] favor . . . , all property
rights to the work on HappinessPilot be awarded to UIF, [and] that
[Appellee] be declared in material breach of her agreement.” Appellants’
Answer to Appellee’s Statement of Claims, 4/8/14, at 18. Appellant also
asserted counterclaims seeking (1) $250,000 in breach of contract damages
and (2) an injunction preventing Appellee from disclosing or using any
confidential and proprietary information regarding “happinessPilot.” Award
at 3; Appellants’ Counterstatement of Claim, 6/2/14, at 3-4.
The arbitrators conducted several hearings, but did not record the
proceedings for transcription. Award at 4 n.2. On December 18, 2014, the
arbitration panel entered an award in Appellee’s favor. Regarding
“happinessPilot,” the arbitrators ordered:
As between [Appellee] and UIF, [Appellee] is the owner
of the intellectual property of happinessPilot that was
created between June 26, 2010 and August 31, 2011.
UIF owns all the intellectual property that was created
in happinessPilot from September 1, 2011, to February 10,
2014.
Award at 41.
3
Appellee also requested a determination that she was entitled to remain in
the Rittenhouse condominium.
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As to the damages from Appellants’ breach of the 2012 employment
agreement, the arbitrators ordered:
Within thirty days after the date of this Award UIF will
pay [Appellee] any unpaid salary due under the 2012
Employment Agreement from February 10, 2014 through
December 31, 2014, subject to required withholdings.
UIF will fund an account or purchase an annuity
sufficient to pay a yearly $80,000 salary to [Appellee] on a
monthly basis, beginning January 1, 2015 and ending
December 31, 2019.
Id.
On January 16, 2015, Appellants filed the petition to strike, set aside,
or modify the arbitration award that gives rise to this appeal. Appellee filed
a response with new matter and a cross-petition to confirm the award, enter
final judgment, and award attorney fees. Appellants filed a response to the
cross-petition.
The trial court heard arguments on Appellants’ petition and Appellee’s
cross-petition on April 20, 2015. The following day, the court entered its
orders denying Appellants’ petition to strike, set aside, or modify the
arbitration award and granting Appellee’s petition to confirm the arbitration
award, enter final judgment, and award attorney fees.4 On April 29, 2015, a
final judgment was entered on the praecipe filed by Appellee.
4
As noted by Appellee, Appellants do not challenge the orders granting her
cross-petition to confirm the arbitration award or the order granting attorney
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Appellants, on May 4, 2015, filed a timely notice of appeal. The trial
court did not order a Pa.R.A.P. 1925(b) statement.
Appellants present five questions for review.
Whether the trial court erred as a matter of law when it
denied Appellants[’] petition to vacate, set aside or modify
the arbitration award when the arbitration panel addressed
an issue and entered an award outside the scope of the
agreement?
Whether the trial court erred as a matter of law when it
denied Appellants[’] petition to vacate, set aside or modify
the arbitration award where the arbitration panel denied
Appellant’s a full and fair hearing by denying discovery
necessary to defend the claim during the arbitration
process?
Whether the trial court erred as a matter of law when it
denied Appellants[’] petition to vacate, set aside or modify
the arbitration award when the arbitration panel ignored
uncontested testimony and failed to apply the controlling
case law in determining ownership of happinessPilot?
Whether the trial court erred as a matter of law when it
denied Appellants[’] petition to vacate, set aside or modify
the arbitration award when the arbitration panel ignored
evidence and failed to apply controlling case law regarding
mitigation of damages?
Whether the trial court erred as a matter of law when it
denied Appellants[’] petition to vacate, set aside or modify
the arbitration award when the arbitration panel entered
an award that was contradictory, unenforceable and
contrary to law?
Appellants’ Brief at 4-5.
fees. Therefore, we confine our discussion to Appellants’ arguments
regarding the denial of the their petition to strike, set aside, or modify.
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Appellee, in her responsive brief, suggests Appellants’ brief is defective
and their arguments are frivolous. Appellee’s Brief at 13-15. Appellee seeks
attorney fees and delay damages under Pa.R.A.P. 2744. Id. at 16-18.
“[W]hen reviewing a trial court's ruling on a petition to vacate or
modify an arbitration award, this Court will only reverse for an abuse of
discretion or error of law.” MGA Ins. Co. v. Bakos, 699 A.2d 751 (Pa.
Super. 1997) (citation omitted). The principles governing judicial review of
a common law arbitration award are codified in Section 7341 of the Judicial
Code.
The award of an arbitrator in a nonjudicial arbitration
which is not subject to [42 Pa.C.S. §§ 7301-7320]
(relating to statutory arbitration) or a similar statute
regulating nonjudicial arbitration proceedings 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. § 7341. “[A]n appellant bears the burden to establish both the
underlying irregularity and the resulting inequity by clear, precise and
indubitable evidence.” F.J. Busse Co.. v. Sheila Zipporah, L.P., 879 A.2d
809, 811 (Pa. Super. 2005) (citations and quotation marks omitted).
First, Appellants assert that the issue of ownership exceeded the scope
of the agreement to arbitrate in the 2012 employment agreement.
Appellants emphasize that the arbitrators “acknowledged that ‘nothing in the
2012 [a]greement declares who owns the intellectual property that makes
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up [‘happinessPilot’].” Appellant’s Brief at 15. According to Appellants, “by
addressing the issue of ownership of [‘happinessPilot’], the panel was
delving into matters beyond the scope of the parties’ [e]mployment
[a]greement . . . .” Id. No relief is due.
“Our decisional law has made clear that the issue of whether a party
agreed to arbitrate a dispute is a threshold, jurisdictional question that must
be decided by the court.” Pisano v. Extendicare Homes, Inc., 77 A.3d
651, 654 (Pa. Super. 2013) (citation omitted). Generally, “[w]hether a
claim is within the scope of an arbitration provision is a matter of contract . .
. .” Elwyn v. DeLuca, 48 A.3d 457, 461 (Pa. Super. 2012) (citation
omitted). “[P]arties to a contract cannot be compelled to arbitrate a given
issue absent an agreement between them to arbitrate that issue.” Id.
(citation omitted).
Assuming arguendo that the 2012 employment agreement’s silence on
the ownership of the “happinessPilot”-IP evinces the absence of an
agreement that such a dispute was arbitrable, a review of record confirms
Appellants nonetheless assented to the arbitrators’ jurisdiction. Appellants
did not contest the jurisdiction of the arbitrators to decide ownership of the
“happinessPilot”-IP. See Appellants’ Answer to Appellee’s Statement of
Claims at 2. Similarly, Appellants did not seek to stay arbitration on the
ownership issue in the court of common pleas. See id. at 18; see
generally 42 Pa.C.S. §§ 7304, 7342.
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Moreover, Appellants not only failed to object to the jurisdictional
issue, but also submitted the determination of ownership of the
“happinessPilot”-IP to the arbitrators. See Appellants’ Answer to Appellee’s
Statement of Claims at 2. Appellants specifically sought a determination
that UIF owned the “happinessPilot”-IP. See id. At arbitration, Appellants
were prepared to assert that Appellee was an employee while on leave and
that they owned all of the “happinessPilot”-IP. See Award at 20 (noting the
parties “vehemently disagree” on whether Appellee had any ownership
interest prior to January 1, 2012). Because Appellants assented to have the
issue of ownership placed before the arbitrators, they cannot now complain
that the adverse outcome was not subject to arbitration. Accordingly, we
cannot conclude that Appellants were compelled to arbitrate an issue beyond
the scope of their agreement. See DeLuca, 48 A.3d at 461. Thus, the trial
court did not err in declining to strike, set aside, or modify the arbitrators’
award based on this claim.
Second, Appellants contend arbitrators deprived them of a full and fair
opportunity regarding ownership of the intellectual property related to
“happinessPilot.” They claim that in discovery, they were denied their
requests for (1) Appellee to provide “access to computer backup disks that
contained the only evidence of work performed by Appellee prior to May or
June of 2011” and (2)an extension of time for discovery. Appellants’ Brief at
18. Appellants conclude, “[T]he Arbitration Panel issued a ruling on
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ownership of [“happinessPilot”] prior to May or June 2011 despite never
reviewing any evidence that there was any work performed on [it] prior to
this time. This resulted in a denial of Appellants’ right to a full and fair
hearing . . . .” Id. at 18-19. In support, Appellants rely on Smaligo v.
Fireman’s Funds Ins. Co., 247 A.2d 577 (Pa. 1968), for the proposition
that the denial of a full and fair hearing is a basis to set aside an arbitration
award. Appellants’ Brief at 16-17. Our review reveals that Appellants failed
to establish an adequate irregularity in the arbitration proceeding based on
the alleged limitation on their ability to conduct discovery.
This Court has observed:
“Arbitration, while not surrounded by the technical
procedural safeguards incident to litigation, is not a wholly
informal process and requires for its validity the
observance of certain minimum standards indispensable to
the securing of a fair and impartial disposition of the merits
of a controversy.” These minimum standards require that
both parties are provided with notice, all the arbitrators
must sit at the hearing, each side is entitled to be heard
and to be present when the other party’s evidence is being
given and, unless the submission allows a decision by a
majority of the arbitrators, all must join in the award.
Andrew v. CUNA Brokerage Servs., Inc., 976 A.2d 496, 501 (Pa. Super.
2009) (citations omitted).
“The right to discovery is one of these devices which is not obligatory
as an essential of due process to a valid arbitration proceeding.”
Harleysville Mutual Casualty Co. v. Adair, 218 A.2d 791, 794 (Pa. 1966).
Questions regarding discovery are generally matters within the exclusive
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jurisdiction of the arbitrators. See Savage v. Commercial Union Ins. Co.,
473 A.2d 1052, 1059 (Pa. Super. 1984).
Instantly, the record reveals the following procedural history of this
claim. In the trial court, Appellee, as a response to Appellants, asserted that
the arbitration panel, “specifically permitted discovery concerning the
creation of happinessPilot and only limited discovery of documents relating
to future development of happinessPilot . . . .” Appellee’s Resp. to
Appellants’ Pet. to Vacate, Set-Aside or Modify Arbitrators’ Award and Open
Record, 2/4/15, at 11-12. In support, Appellee attached to her response the
arbitrators’ June 25, 2014 discovery order indicating that Appellee was to
produce documents in her “possession or control relating to the creation of
the happinessPilot.org.” Id. at Ex. E. Appellee thus requested that the
court strike Appellants’ petition for relief.
In response to Appellee’s motion to strike, Appellants denied
Appellee’s averment that the arbitration panel permitted discovery regarding
the creation of “happinessPilot.” Appellants’ Resp. in Opp’n to Appellee’s
Mot. to Strike the Pet. to Vacate, Set-Aside or Modify the Arbitrators’ Award,
4/22/15, at 4. However, they restated their general claim that they were
denied a full and fair hearing and that the arbitrators’ award lacked a proper
evidentiary basis. Id.
Appellants, for the first time on appeal, state they were denied access
to backup computer disks containing evidence of work performed by
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Appellee during May or June 2011. See Appellants’ Brief at 18.
Subsequently, in a supplemental reproduced record appended to their reply
brief, Appellant attached Appellee’s answers to Appellants’ interrogatory.
That document, however, was not contained in the original record and thus
cannot be presumed to have been presented to the trial court. In any event,
the contents of that document do not substantiate the claim that Appellants
requested, but were denied, access to information on the backup computer
disks.
In light of the foregoing, we conclude that Appellants’ argument that it
was denied certain computer disks is waived for appellate review. See
Pa.R.A.P. 302(a) (“Issues not raised in the lower court are waived and
cannot be raised for the first time on appeal”); see generally Ruspi v.
Glatz, 69 A.3d 680, 690-91 (Pa. Super. 2013) (“[F]or purposes of appellate
review, what is not in the certified record does not exist.”). Further, it is
apparent that Appellants’ general claims of inadequate discovery in the trial
court did not meet their burden of establishing, “by clear, precise and
indubitable evidence,” that the discovery ruling amounted to an “irregularity”
for the purposes of upsetting the arbitrators’ award. See F.J. Busse Co.,
879 A.2d at 811. Therefore, our review compels us to conclude that the trial
court did not err in denying relief on this claim.
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Appellants, in their third and fourth claims on appeal, assert manifest
injustice in the arbitration. Appellant’s Brief at 20, 23. We address these
assertions jointly and find no relief is due.
Appellants, in their third claim, focus on the arbitrators’ determination
that Appellee was not an employee during her leave from UIF beginning in
June 2010, when she began work on “happinessPilot.” According to
Appellants, the arbitrators, when rejecting their claim that “happinessPilot”
was work-for-hire from its inception, improperly determined Appellee’s
employment status during her 2010-2011 leave. Id. at 19 (citing “work-for-
hire” doctrine codified in 17 U.S.C. § 201). They assert that the arbitrators
“completely disregarded the facts and the law, resulting in manifest
injustice, sufficient pursuant to the statute and case law to vacate the
Arbitration Award.” Id. at 20.
In their fourth claim, Appellants assert the arbitrators “completely
ignored what was required of them pursuant to law, and no judge or group
of judges would have disregarded the Appellee’s failure to mitigate her
damages as consideration of same is required by law.” Id. at 21-22.
Appellants note “Appellee was requested to continue working for UIF while
they worked out a resolution to the ownership dispute[, but] Appellee
refused to return to the office or return to her employment at UIF.” Id. at
23. They also observe that Appellee never made an attempt to obtain other
employment. Id. Appellants conclude that (1) the “award in excess of
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$400,000,” apparently referring to the award of unpaid salary from February
10, 2014 through December 31, 2014, “is a manifest injustice that must be
corrected” and (2) the arbitrators engaged in a “manifest disregard for
established law” by allowing “Appellee to continue to collect a salary from
UIF for the next four years while making absolutely no effort to seek
alternative employment” to mitigate her damages. Id. at 23-24.
Preliminarily, we note that Appellants’ references to “manifest
injustice” conflate the standards governing challenges to statutory and
common law arbitration. See Appellant’s Brief at 19, 21. Because the 2012
employment agreement did not expressly refer to the Pennsylvania Uniform
Arbitration Act, 42 Pa.C.S. §§ 7301-7320, or a similar statute, the standards
governing common law arbitration apply. See 42 Pa.C.S. §§ 7302(a), 7341;
Lowther v. Roxborough Mem. Hosp., 738 A.2d 480, 483-85 (Pa. Super.
1999).
A review of common law arbitration is governed by the precept that
“[t]he arbitrators are the final judges of both law and fact, and an arbitration
award is not subject to reversal for a mistake of either.” Toll Naval Assoc.
v. Hsu, 85 A.3d 521, 525 (Pa. Super. 2014) (citations omitted). As this
Court has noted:
[t]he language of [42 Pa.C.S.] § 7341 and decided cases
make it evident that only claims which assert some
impropriety in the arbitration process may be the subject
to an appeal—to the exclusion of appeals which seek
review of the merits. Accordingly, it may be concluded
that while the appeal court will entertain a claim that there
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has been a systemic defect in the proceedings, attempts to
add to, or reopen, litigated issues or to rekindle the
consideration of the merits are not subject to appeal.
Snyder v. Cress, 791 A.2d 1198, 1201 (Pa. Super. 2002) (citations
omitted). Because the focus is on “fraud, misconduct, corruption or other
irregularity” in the underlying process, judicial review of common law
arbitration is more limited than a review of statutory arbitration. See F.J.
Busse Co., 879 A.2d at 811 (reiterating that “it is always open to
contracting parties to provide for statutory . . . arbitration where the
grounds for review are much broader than” for common law arbitration);
Duquesne Light Co. v. New Warwick Min. Co., 660 A.2d 1341, 1344,
1346 (Pa. Super. 1995) (discussing and comparing judicial review under
manifest injustice standard and Pennsylvania law regarding common law
arbitration).
As Appellants rely on an incorrect standard, they have not established
a right to appellate relief. Moreover, our review compels the conclusion that
Appellants’ third and fourth claims go to irregularities in the result,5 not an
5
On the issue of Appellants’ mitigation of damages claim, we note:
In an employment case, the measure of damages is the
wages which were to be paid less any amount actually
earned or which might have been earned through the
exercise of reasonable diligence in seeking other similar
employment. The burden is on the breaching party to
show that the losses could have been avoided. This
burden can be established “by proving that other
substantially equivalent positions were available to [the
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irregularities in the procedures. See Snyder, 791 A.2d at 1201; Duquesne
Light Co., 660 A.2d at 1344, 1346. Therefore, applying the proper
standards, we find no relief is due on Appellants’ third and fourth claims.
Appellants, in their fifth claim, argue that the arbitrators’ findings and
conclusions of law were “contradictory” and “[t]he vagueness of the Panel’s
award renders the enforcement of this award impossible.” Appellants’ Brief
at 24-25. Appellants’ arguments that the findings and conclusions of law
were contradictory incorporate their previous contentions, see id. at 24-25,
and we need not reiterate our disposition of those matters.
However, Appellants’ argument that the award is too vague to be
enforceable warrants further discussion. Appellants contend that the award
of ownership of intellectual property related to “happinessPilot” until August
2011 renders enforcement “impossible.” Id. at 25. Appellants observe
“Appellee believes that the idea of [“happinessPilot’s”] conceptualization
gives her complete ownership of the IP.” Id. at 25. They contend that
employee] and that [she] failed to use reasonable
diligence in attempting to secure those positions.”
Delliponte v. DeAngelis, 681 A.2d 1261, 1265 (Pa. 1996) (citation omitted
and emphasis added). Aside from the assertion that Appellee did not look
for alternative employment, Appellants provide no further suggestion that
they carried their burden at the arbitration hearing.
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“there is no way to ascertain what, if anything, was developed before
September 2011 and what was developed after.” Id.
We agree that the arbitrators’ award did not resolve all issues
regarding “happinessPilot.” The arbitrators acknowledged their award was
limited to the arguments and evidence. The arbitrators, for example,
declined to address Appellants’ claim that “happinessPilot” was derived from
or based on UIF’s existing “Discovery” project. See Award at 7 n.6.
Moreover, the arbitrators did not address whether third-parties “might have
intellectual property interests in happinessPilot.” Id. at 26 n.30. That the
award regarding ownership did not resolve all disputes, however, does not
render the award “unenforceable.” While Appellants detail the difficulties of
implementing the decision based primarily on the work-for-hire theories
presented by the parties, they provide no additional support for their claim
that the award regarding ownership is unenforceable. Thus, we find no basis
to disturb the trial court’s decision to deny Appellants’ petition on this basis.
Lastly, Appellants argue that the award directing them to “fund an
account or purchase an annuity sufficient to pay” Appellee’s expectation
damages for the breach of the 2012 employment agreement was too vague
to be enforced. They assert the arbitrators failed to consider the tax
implications, allocations of administrative fees, or possible interest or
investment income from the account or annuity would require the record to
be reopened. Appellants’ Brief at 25-26.
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The award directing Appellants to continue to pay her annual salary of
$80,000 for the balance of the term of the 2012 employment agreement is
somewhat unusual. It appears neither party presented evidence as to the
present value of the expectation damages associated with UIF’s breach of
the agreement. See Award at 36 (noting Appellants “did not provide
evidence of the present value of [Appellee’s] remaining pay, and [Appellee]
is not entitled to a windfall”). Thus, the arbitrators issued an award under
which Appellant would not immediately obtain the entire future value of her
future salary, but would receive the value of the remainder of the 2012
employment agreement under the amounts and terms of the agreement.
Although Appellants again point to difficulties with implementing the award,
we cannot conclude that the award is too vague to enforce. Thus, we
conclude Appellants have not established error in the trial court’s decision to
deny their petition to strike, set aside, or modify the award.
Lastly, as to Appellee’s requests to strike the appeal based on a
defective brief, our review reveals that the alleged deficiencies in Appellants’
brief do not hamper meaningful appellate review. As to Appellee’s request
for counsel fees and delay damages, we conclude that Appellants presented
at least some colorable issues for appeal. Although Appellants ultimately
failed to convince this Court that the trial court erred, we cannot conclude
the appeal was frivolous, the appeal was taken solely for delay, or that
Appellants’ conduct was dilatory, obdurate, or vexatious. See Pa.R.A.P.
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2744. Therefore, we reject Appellee’s request that this Court to invoke Rule
2744.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/8/2016
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