J-A11043-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
LOUIS FIGUEROA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
ALLSTATE INSURANCE COMPANY
No. 2006 EDA 2015
Appeal from the Order Entered May 28, 2015
in the Court of Common Pleas of Montgomery County Civil Division
at No(s): No. 2008-06730
BEFORE: SHOGAN, MUNDY, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED JULY 08, 2016
Appellant, Louis Figueroa, appeals from the order entered in the
Montgomery County Court of Common Pleas denying his motion to strike
and/or set aside the underinsured motorist (“UIM”) arbitration award in his
favor in the amount of $10,000.00 which was molded to zero dollars
reflecting a credit to Appellee, Allstate Insurance Company. Appellant avers
the trial court erred in failing to disqualify Appellee’s counsel, refusing to
enforce his subpoenas, and denying his request for a continuance. We
affirm.
We adopt the facts and procedural posture of this case as set forth by
the trial court. See Trial Ct. Op., 8/14/15, at 1-4. Appellant filed a court
*
Former Justice specially assigned to the Superior Court.
J-A11043-16
ordered Pa.R.A.P. 1925(b) statement of errors complained of on appeal 1 and
the trial court filed a responsive opinion. This appeal followed.
Appellant raises the following issues for our review:
1. Whether the trial judge erred in refusing to find that
[A]ppellant was denied a full and fair hearing of his
underinsured motorist claims by virtue of the trial court’s
failure to disqualify [A]ppellee’s counsel?
2. Whether the trial judge erred in refusing to find that
[A]ppellant was denied a full and fair hearing of his
underinsured motorist claims by virtue of the arbitration
panel’s failure to enforce subpoenas properly issued for
witnesses and documents to be produced at the hearing on
[A]ppellant’s behalf?
3. Whether the trial judge erred in refusing to find that
[A]ppellant was denied a full and fair hearing of his
underinsured motorist claims by virtue of the arbitration
panel’s failure to continue the arbitration hearing?
Appellant’s Brief at 3.
First, Appellant contends he was denied a fair arbitration hearing
because the trial court refused to disqualify Appellee’s counsel, Kevin
McNulty, Esq. Id. at 11. He argues that the arbitration was conducted at
common law and thus the award may be vacated where it has been shown
that a party has been denied a fair hearing.2 Id.
1
We note that Appellant’s Rule 1925(b) statement contained twelve issues.
We will not consider any issue if it has not been set forth in the statement of
questions involved. Any unraised claims are abandoned on appeal. See
City of Phila. v. Schweiker, 858 A.2d 75, 90 (Pa. 2004).
-2-
J-A11043-16
Appellant claims that at common law, an attorney owes a fiduciary
duty to his client, citing Maritrans v. Pepper, Hamilton & Sheetz, 602
A.2d 1277 (Pa. 1992). He avers
[t]his fiduciary duty estops an advocate from undertaking
representations adverse to that of a former (or present)
client in a “substantially related” matter to that involving
the initial client[.] Id. at 1284. Where such dual
advocacy is attempted, there is a presumption of misuse of
the original client’s confidences[.] Id.
Appellant’s Brief at 12.
2
As the trial court noted, Appellant “incorrectly applies the common law
arbitration standard for vacatur in the instant matter.” Trial Ct. Op. at 5.
The Allstate insurance policy provides, in pertinent part, as follows:
If We Cannot Agree
If the insured person and we don’t agree:
1. on that person’s right to receive damages, or
2. on the amount of those damages,
then the disagreement may be settled by arbitration. If
both the insured person and we agree to settle by
arbitration, arbitration will take place as provided
under the Pennsylvania Uniform Arbitration Acts of
1927 and 1980.
R.R. at 200a (some emphasis added). We cite to Appellee’s reproduced
record. In Cotterman v. Allstate Ins. Co., 666 A.2d 695 (Pa. Super.
1995), this court opined that
the parties sought arbitration pursuant to the insurance
policy which stated that “arbitration will take place as
provided under the Pennsylvania Uniform Arbitration
Acts of 1927 and 1980.” This language constitutes an
express provision, by the parties, for statutory
arbitration.
Id. at 697 (citation omitted and emphases added).
-3-
J-A11043-16
Our review is governed by the following principles:
“[w]hen we review a trial court’s decision to affirm, modify
or vacate an arbitration award arising from an insurance
contract, this Court may reverse only for an abuse of
discretion or error of law.” O’Connor-Kohler v. United
Services Auto. Ass’n, 883 A.2d 673, 676 (Pa. Super.
2005) (en banc), quoting Rudloff v. Nationwide Mut.
Ins. Co., 806 A.2d 1270, 1272 (Pa. Super. 2002).
Hartford Ins. Co. v. O’Mara, 907 A.2d 589, 593 (Pa. Super. 2006).
The Pennsylvania Uniform Arbitration Act provides:
(1) On application of a party, the court shall vacate an
award where:
(i) the court would vacate the award under section
7341 (relating to common law arbitration) if this
subchapter were not applicable;
(ii) there was evident partiality by an arbitrator
appointed as a neutral or corruption or misconduct in
any of the arbitrators prejudicing the rights of any
party;
(iii) the arbitrators exceeded their powers;
(iv) the arbitrators refused to postpone the hearing
upon good cause being shown therefor or refused to
hear evidence material to the controversy or otherwise
so conducted the hearing, contrary to the provisions of
section 7307 (relating to hearing before arbitrators), as
to prejudice substantially the rights of a party; or
(v) there was no agreement to arbitrate and the issue
of the existence of an agreement to arbitrate was not
adversely determined in proceedings under section
7304 (relating to court proceedings to compel or stay
arbitration) and the applicant-party raised the issue of
the existence of an agreement to arbitrate at the
hearing.
42 Pa.C.S. § 7314(1)(i)-(v).
-4-
J-A11043-16
In the case sub judice, the trial court opined:
[Appellant] alleges the trial court erred in failing to
strike the arbitration award because Kevin McNulty,
Esquire (“McNulty”) represented the tortfeasor, Belmonte,
in the underlying action. [Appellant] alleges the trial court
erred by denying his previously filed “Motion for
Disqualification of Counsel” by order dated September 16,
2010.
[Appellant] relies on Maritrans[, supra] to support his
claim that it was error not to order McNulty’s
disqualification. [Appellant’s] reliance on Maritrans is
misplaced. In Maritrans, over the course of a law firm’s
decade long labor representation of a commercial
company, the law firm learned the company’s long term
objectives, competitive strategies and other sensitive
information. After gaining this knowledge, the law firm
undertook representation of several of the company’s
competitors. The Supreme Court of Pennsylvania found
that this constituted a breach of the law firm’s fiduciary
duty to the company. The court established that a) an
attorney owes their former or present client a fiduciary
duty which prevents the attorney from representing an
interest adverse to that client and b) a presumption of
misuse of a client’s information exists when an attorney
violates that duty.
Although McNulty never represented [Appellant, he]
argues that there is a presumption that McNulty misused
[Appellant’s] confidences he gathered in the underlying
action to the advantage of [Appellee] in this action. . . .
McNulty represented the tortfeasor in the underlying action
whose interests were adverse to [Appellant]. In the
instant matter, McNulty again is representing a party
adverse to [Appellant]. McNulty did not obtain any
confidences from [Appellant] as he was the opposing
counsel. Since [Appellant] was never a former o[r]
present client of McNulty, the Motion to disqualify was
properly denied and provides no basis for vacatur of the
award.
-5-
J-A11043-16
Trial Ct. Op. at 6-7 (some emphasis added). We agree no relief is due. We
discern no abuse of discretion or error of law by the trial court. See
Hartford Ins. Co., 907 A.2d at 593.
Next, Appellant contends he was denied a full and fair arbitration
hearing because the court refused to enforce his properly issued subpoenas.3
Appellant’s Brief at 14. Appellant avers that the arbitrators erred “[i]n
allowing [Appellee] to escape production of all the law firm and insurance
company’s records . . . .” Id. at 15. We find no relief is due.
The Pennsylvania Uniform Arbitration Act provides:
The arbitrators may issue subpoenas in the form
prescribed by general rules for the attendance of witnesses
and for the production of books, records, documents and
other evidence. Subpoenas so issued shall be served and,
upon application to the court by a party or by the
arbitrators, shall be enforced in the manner provided or
prescribed by law for the service and enforcement of
subpoenas in a civil action.
42 Pa.C.S. § 7309(a) (emphasis added).
3
We note that in support of his claim, Appellant cites Schultz v. Mount
Vernon Fire Ins. Co., 77 Lack. J. 66 (1976), Trzesniowski v. Erie Ins.
Exch., 59 Pa. D. & C.2d 44 (C.C.P. Erie 1973), Hopewell v. Adebimpe, 18
D. & C.3d 659 (C.C.P. Allegheny 1981), and Greynolds v. McAllister,
(C.C.P. Allegheny 1982). Appellant’s Brief at 14-15. It is well-settled that
Court of Common Pleas decisions are not binding precedent on this Court.
Discover Bank v. Stucka, 33 A.3d 82, 87–88 (Pa. Super. 2011). Appellant
presents no controlling legal authority in support of his claim. Appellant
states that “[i]t is settled that a new trial should be granted where the
excluded evidence could have affected the jury’s verdict,” citing Kremer v.
Janet Gleischer Gallery, Inc., 467 A.2d 377 (Pa. Super. 1983).
Appellant’s Brief at 15. Accordingly, we could find the issue waived. See
JJ. Deluca Co. v. Toll Naval Assocs., Inc., 56 A.3d 402, 412 (Pa. Super.
2012).
-6-
J-A11043-16
The arbitrators issued an order on September 18, 2013, which
provided:
On August 29, 2013 [, Appellant] submitted a request by
fax for subpoenae [sic] to a “hearing” convened just for
the purposes of receiving the documents to be
subpoenaed. . . . I am not authorized to convene a mock
hearing simply to provide discovery that is not allowed.
R.R. at 223a. The order denied Appellant’s “request for subpoenae [sic] for
documents prior to the hearing on the merits . . . .” Id. at 223a-24a
(emphasis added). The September 18th order provided that “[r]equests for
subpoenas to the hearing on the merits shall be made by motion, with the
form of subpoenae [sic] sought attached, after a date is selected for a
hearing on the merits.” Id. at 224a.
On June 24, 2014, the arbitrators issued an order which provided that
“[n]o discovery requests will be entertained or allowed.” Id. at 29a. At the
arbitration hearing,4 counsel for Appellant stated he “eventually got” the
medical records and “we have all the medical records here.” Id. at 40a,
53a. He then stated he wanted to issue the subpoena because he didn’t
“necessarily have them all.” Id. at 53a.
The trial court found no merit to Appellant’s claim, noting that
Appellant “introduced 88 pages of medical records at the arbitration in
support of his claim for damages.” Trial Ct. Op. at 8. We agree no relief is
4
We note that Appellant did not appear at the arbitration.
-7-
J-A11043-16
due. The issuance of subpoenas by the arbitrators is discretionary pursuant
to the Uniform Arbitration Act. See 42 Pa.C.S. § 7309(a). We discern no
abuse of discretion or error of law by the trial court. See Hartford Ins.
Co., 907 A.2d at 593.
Lastly, Appellant contends that he was denied a full and fair arbitration
hearing because the arbitrators refused to continue the hearing. Appellant’s
Brief at 16. We reproduce Appellant’s argument in support of this claim
verbatim:
[Appellant’s] present counsel clearly demonstrated good
cause for the requested continuance of the arbitration
hearing, or at least its bifurcation. Indeed, the necessity
for the continuance arose from [Appellee’s] own intentional
or negligent conduct, as well the corresponding conduct of
its law firm. The arbitrator’s unreasonable refusal to
continue the arbitration hearing necessitates vacating the
panel’s award, 42 Pa.C.S.A. § 7314; Cf. Aetna Cas. and
Sur. Co. v. Dieetrich, 803 F. Supp. 1032 (M.D. Pa. 1992)
(indicating, in dicta, that arbitrators exceed powers where
they refuse to postpone arbitration hearing upon showing
of good cause).
Appellant’s Brief at 16 (emphasis added).5
Instantly, the trial court opined:
This case arises from a motor vehicle accident which
occurred on December 6, 2000. The instant matter
commenced on November 3, 2006. [Appellee] petitioned
the court on April 29, 2009 to appoint a neutral arbitrator
so the case could proceed to a UIM hearing. The neutral
5
We note that “dicta does not constitute binding precedent.” Valles v.
Albert Einstein Med. Ctr., 758 A.2d 1238, 1246 (Pa. Super. 2000)
(citation omitted). Furthermore, lower federal court cases are not binding
precedent. See In re Stevenson, 40 A.3d 1212, 1221 (Pa. 2012).
-8-
J-A11043-16
arbitrator had been attempting to schedule the arbitration
since March 2013[6] and granted [Appellant’s] counsel’s
request that he would be able to proceed with the
arbitration anytime during the last two weeks of June
2014. The arbitrators again postponed the arbitration
hearing to July 21, 201[4] pursuant to a continuance
request on behalf of [Appellant]. The order granting
[Appellant’s] continuance request made it very clear that
no more continuances would be granted and that all
counsel agreed to try the case to completion on that date.
. . . [Appellant’s] counsel consented to the July 21, 2014
arbitration date.
Trial Ct. Op. at 8-9 (footnote omitted). We agree no relief is due.
The arbitrators did not refuse “to postpone the hearing upon good
cause being shown” by Appellant. See 42 Pa.C.S. § 7314(1)(iv). We
discern no abuse of discretion or error of law by the trial court. See
Hartford Ins. Co., 907 A.2d at 593. Accordingly, we affirm the order of the
trial court denying the motion to strike and/or set aside the UIM arbitration
award which was molded to reflect a credit to Appellee.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/8/2016
6
See R.R. at 223a.
-9-