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FISCHER v. BORSHER ET UX. (11/21/73)

decided: November 21, 1973.

FISCHER
v.
BORSHER ET UX., APPELLANTS



Appeal from judgment of Court of Common Pleas of Monroe County, June T., 1969, No. 410, in case of John E. Fischer v. Harry N. Borsher and Ruth Borsher, his wife.

COUNSEL

John J. Pentz, Jr., and Bensinger and Pentz, for appellants.

No appearance entered nor brief submitted for appellee.

Wright, P. J., Watkins, Jacobs, Hoffman, Cercone, and Spaeth, JJ. (Spaulding, J., absent). Opinion by Hoffman, J., In Support of Reversal. Cercone and Spaeth, JJ., join in this opinion in support of reversal.

Author: Per Curiam

[ 226 Pa. Super. Page 464]

The six Judges who heard this appeal being equally divided, the judgment is affirmed.

Disposition

Judgment affirmed.

Opinion by Hoffman, J., In Support of Reversal:

This is an appeal from an order granting appellee's motion for summary judgment on the basis of a common law arbitration award. Appellant contends that the arbitrators exceeded their jurisdiction by awarding "extras".

The appellee is a contractor who was engaged by the appellant to remodel appellant's dwelling. After the work was completed, a dispute arose as to the amount due to the appellee. The appellee filed a claim and, pursuant to the terms of the contract, the dispute was submitted to arbitration. Appellee alleged a balance due of $5,700.00 for work performed under the contract. He also claimed that $4,890.00 was due for extra work and materials not provided for in the original drawings and specifications. The majority arbitrators awarded $9,140.59 to the appellee constituting full award for both claims minus appellant's counter-claim of $1,400.00. One arbitrator dissented, believing that the panel had no jurisdiction under the contract to make an award for the claimed extra material and work.

[ 226 Pa. Super. Page 465]

The settlement of disputes by voluntary submission to arbitration is favored in the law. For this reason, once parties have agreed to settle particular contractual disputes by arbitration, the action or award of the arbitrators is reviewable only for fraud, misconduct, corruption, or other such irregularity which caused the arbitrators to render an unjust, inequitable, and unconscionable award. Harker v. Pennsylvania Page 465} Manufacturers Association Insurance Company, 219 Pa. Superior Ct. 485, 281 A.2d 741 (1971). However, "arbitration is a matter of contract . . . and whether a party to a contract is bound to arbitrate and what issues, if any, are to be arbitrated are matters for a court to determine from the provisions of the contract." U. Steelworkers of America v. Westinghouse Electric Co., 413 Pa. 358, 196 A.2d 857 (1964). Although "every reasonable intendment will be made in favor of agreements to arbitrate," Scholler Bros. v. Otto A. C. Hagen Corp., 158 Pa. Superior Ct. 170, 44 A.2d 321 (1945), such agreements are to be strictly construed and not be extended by implication. Emmaus Municipal Authority v. Eltz, 416 Pa. 123, 125, 204 A.2d ...


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