J-S73043-17
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
PRINCE LAW OFFICES, P.C., : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
v. :
:
MCCAUSLAND KEEN & BUCKMAN, :
MCNELLY & GOLDSTEIN, LLC & JON :
S. MIROWITZ, ESQUIRE, :
:
Appellees : No. 550 MDA 2017
Appeal from the Judgment Entered March 16, 2017
in the Court of Common Pleas of Berks County,
Civil Division, at No(s): 16-13520
PRINCE LAW OFFICES, P.C., : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
v. :
:
MCCAUSLAND KEEN & BUCKMAN, :
MCNELLY & GOLDSTEIN, LLC & JON :
S. MIROWITZ, ESQUIRE, :
:
Appellees : No. 668 MDA 2017
Appeal from the Judgment Entered March 16, 2017
in the Court of Common Pleas of Berks County,
Civil Division, at No(s): 16-13520
BEFORE: OLSON, DUBOW, and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED DECEMBER 18, 2017
Prince Law Offices, P.C. (Prince) appeals from the judgment entered in
favor of McCausland Keen & Buckman (MKB), McNelly & Goldstein, LLC (MG),
and Jon S. Mirowitz, Esquire (Appellees, collectively), after the trial court
* Retired Senior Judge assigned to the Superior Court
J-S73043-17
entered orders denying Prince’s petition to vacate arbitration award and
granting Appellees’ petition to confirm the arbitration award. We affirm.
The trial court offered the following summary of the facts and procedural
history of the case.
[Prince] hired [Appellees] to assist in a class action lawsuit
against the City of Philadelphia. Prince contracted with MKB, MG,
and Mirowitz through an independent contractor fee sharing
agreement which included, among other things, terms of
compensation and a provision requiring that disputes be resolved
by arbitration in accordance with the rules of the American
Arbitration Association.
After the underlying Philadelphia lawsuit was settled, a
dispute arose between Prince and MKB, MG, and Mirowitz over the
proper allocation of legal fees as a result of the respective law
firms’ efforts in prosecuting the action. The dispute was submitted
to arbitration on November 14, 2014. Arbitrator Harry T. Mondoil
was selected to preside over a two[-]day in-person arbitration and
entered a partial final award on February 18, 2016 in favor of MKB,
MG, and Mirowitz, but left open the issues of allocation of
attorneys’ fees and arbitration fees/compensation incurred
directly as a result of the arbitration process. A final award was
made on May 16, 2016[,] awarding a portion of the requested
attorneys’ fees and costs, administrative fees and arbitrator
compensation to MKB, MG, and Mirowitz.
Prince filed a petition to vacate arbitration award in the
Court of Common Pleas of Berks County on June 10, 2016[,] and
MKB, MG, and Mirowitz filed a cross petition to confirm arbitration
award on June 28, 2016. After argument held before this Court
on February 21, 2017, the court issued two orders: the first on
February 24, 2017, denying the petition to vacate arbitration
award and the second on March 10, 2017, granting the petition to
confirm arbitration award.
Trial Court Opinion (TCO), 5/25/2017, at 2-3 (unnecessary capitalization
omitted).
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After judgment was entered on March 16, 2017, Prince timely filed
appeals challenging both the order denying his petition to vacate and the order
granting Appellees’ petition to confirm.1 Both Prince and the trial court
complied with Pa.R.A.P. 1925. Prince presents the following question for our
consideration.
Whether the [trial c]ourt erred in failing to vacate the arbitration
award and in confirming the arbitration award in that [Prince] did
demonstrate sufficient irregularities as detailed in its petition
including but not limited to:
a. The lack of explanation from the arbitrator as to the basis
of the determination[,]
b. The lack of calculations by the arbitrator to even enable
the parties to determine whether the award was
accurate, and
c. The award of attorney’s fees when Appellees were not
wholly successful or justified in their claim.
Prince’s Brief at 4.
The trial court and parties agree that this case involves common law,
not statutory, arbitration. TCO, 5/25/2017, at 4; Prince’s Brief at 14;
Appellees’ Brief at 1. Thus, the following principles apply. “A trial court order
1 The trial court states that Prince’s second appeal should be quashed as
untimely filed. TCO, 5/25/2017, at 3. We disagree. “The date of entry of an
order in a matter subject to the Pennsylvania Rules of Civil Procedure shall be
the day on which the clerk makes the notation in the docket that notice of
entry of the order has been given as required by Pa.R.Civ.P. 236(b).”
Pa.R.A.P. 108(b). In this case, a March 15, 2017 docket entry indicates “236
Notice mailed 3/16/17.” Whether March 15 or March 16 is the operative date
for calculating the commencement of the 30-day appeal period, the appeal
was timely filed on Monday, April 17, 2017, because Friday, April 14, 2017,
was a court holiday.
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confirming a common law arbitration award will be reversed only for an abuse
of discretion or an error of law.” Toll Naval Associates v. Chun-Fang Hsu,
85 A.3d 521, 525 (Pa. Super. 2014) (citation and quotation marks omitted).
“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.” Id.
Rather, “mistakes of judgment and mistakes of either fact or law are among
the contingencies parties assume when they submit disputes to arbitrators.”
Allstate Ins. Co. v. Fioravanti, 299 A.2d 585, 589 (Pa. 1973). Therefore,
“[t]he award of an arbitrator … 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.” Toll Naval Associates, 85 A.3d at
525. “In this context, irregularity refers to the process employed in reaching
the result of the arbitration, not to the result itself.” McKenna v. Sosso, 745
A.2d 1, 4 (Pa. Super. 1999) (internal quotation marks and citation omitted).
“[A]n irregularity will not be found simply upon a showing that an incorrect
result was reached.” Duquesne Light Co. v. New Warwick Min. Co., 660
A.2d 1341, 1347 (Pa. Super. 1995).
For example, this Court has found irregularities rising to the level of the
denial of a fair hearing where the arbitrators: exceeded the scope of the
arbitration agreement, Ginther v. U.S. Fid. & Guar. Co., 632 A.2d 333, 335
(Pa. Super. 1993); made an award for claims that were never raised, Mellon
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v. Travelers Ins. Co., 406 A.2d 759, 762 (Pa. Super. 1979), or for claims
that were not raised against the party against whom they were awarded, Alaia
v. Merrill Lynch, Pierce, Fenner & Smith Inc., 928 A.2d 273, 277 (Pa.
Super. 2007); and had an undisclosed, ongoing business relationship with one
of the parties, James D. Morrisey, Inc. v. Gross Const. Co., 443 A.2d 344,
349 (Pa. Super. 1982).
However, this Court has held that no irregularity warranting modification
occurred where the allegations were that the arbitrators: applied the wrong
state’s law, Racicot v. Erie Ins. Exch., 837 A.2d 496, 500 (Pa. Super. 2003);
failed to award fees as provided by a relevant statute, F.J. Busse Co. v.
Sheila Zipporah, L.P., 879 A.2d 809, 812 (Pa. Super. 2005); made an award
contrary to a policy exclusion, Hain v. Keystone Ins. Co., 326 A.2d 526, 528
(Pa. Super. 1974); and made an incorrect determination whether a person
was an insured under a contract. Prudential Prop. & Cas. Ins. Co. v. Stein,
683 A.2d 683, 684 (Pa. Super. 1996).
In sum, “only claims which assert some impropriety in the arbitration
process may be the subject [of] an appeal—to the exclusion of appeals which
seek review of the merits.” Snyder v. Cress, 791 A.2d 1198, 1201 (Pa.
Super. 2002). “[N]either we nor the trial court may retry the issues addressed
in an arbitration proceeding or review the tribunal’s disposition of the merits
of the case.” F.J. Busse Co., 879 A.2d at 811.
The trial court analyzed Prince’s claims as follows.
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Prince’s first alleged irregularity is that the arbitrator did not
explain the basis of his determination in awarding compensation
and fees/costs to MKB, MG, and Mirowitz. The scheduling and
procedure order no. 2 from the arbitrator states that “the award
shall be in the form of a standard award, except that it shall
include findings setting forth for each party a calculation of the
party’s number of compensable hours multiplied by the party’s
hourly rate.” In the independent contractor fee sharing
agreement entered into by Prince and MKB, MG, and Mirowitz, the
parties agreed that any unresolved disputes would be submitted
to arbitration in Berks County before one arbitrator in accordance
with the rules of the American Arbitration Association (AAA).
Under the rules of the AAA, “the arbitrator need not render a
reasoned award unless the parties request such an award in
writing prior to appointment of the arbitrator or unless the
arbitrator determines that a reasoned award is appropriate.”
Thus, there was no requirement for the arbitrator to provide a
reasoned award because the parties had agreed to a standard
award plus a calculation of hours and rates.
Prince’s second alleged irregularity is that the arbitrator did
not include calculations in the award to enable the parties to
determine whether the award was accurate. According to the
scheduling and procedure order no. 2, the arbitrator was to
include in his award “findings setting forth for each party a
calculation of the party’s number of compensable hours multiplied
by the party’s hourly rate.” Although Prince claims that the
arbitrator failed to do this, the arbitrator’s partial final award
clearly contains several pages of calculations of each party’s
billable hours, multiplied by the party’s hourly rate, applying credit
for sums already paid.
Prince’s third alleged irregularity is that the arbitrator
awarded attorneys’ fees to MKB, MG, and Mirowitz when they
weren’t successful or justified in their arbitration claim. In the
independent contractor fee sharing agreement it is clearly stated
that “the arbitrator may assess costs, including counsel fees, in
such manner as the arbitrator deems fair and equitable.” There
is no provision requiring total victory. The arbitrator ultimately
decided that the claimants MKB, MG, and Mirowitz were the
prevailing parties, and were entitled to a monetary award of over
$200,000 on their underlying claim. Claims that MKB, MG, and
Mirowitz were not wholly successful or justified in their claim are
not supported by the contractual “fair and equitable” standard. As
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it is clear to [the trial] court that MKB, MG, and Mirowitz were the
prevailing parties, it was neither unfair nor inequitable for the
arbitrator to award them attorneys’ fees and other costs
associated with the arbitration.
TCO, 5/25/2017, at 4-6 (citations and unnecessary capitalization omitted).
We discern no error or abuse of discretion in the trial court’s
determination. Prince’s arguments before this court are (1) that the arbitrator
“failed to apply binding precedent,” Prince’s Brief at 21, 26, 31; (2) that the
arbitrator miscalculated the amount of time to which the respective parties
were entitled, id. at 27-37; and (3) that the arbitrator made legal and factual
errors in awarding counsel fees to Appellees, id. at 37-40. None of these
claims identifies a fundamental flaw in the process that deprived Prince of a
fair hearing; rather, Prince merely attempts to relitigate issues to show the
wrong result was reached. No relief is due. See, e.g., Duquesne Light Co.,
660 A.2d at 1347 (“[M]istakes of judgment and mistakes of either fact or law
are among the contingencies parties assume when they submit disputes to
common law arbitration.”).
Judgment affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/18/2017
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