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CAMPBELL-ELLSWORTH v. HOLY TRINITY SERBIAN ORTHODOX CHURCH-SCHOOL CONGREGATION (03/31/75)

decided: March 31, 1975.

CAMPBELL-ELLSWORTH, INC., APPELLANT,
v.
HOLY TRINITY SERBIAN ORTHODOX CHURCH-SCHOOL CONGREGATION



Appeal from order and decree of Court of Common Pleas, Civil Division, of Allegheny County, July T., 1974, No. 1422, in case of Campbell-Ellsworth, Inc., a Pennsylvania Corporation v. Holy Trinity Serbian Orthodox Church-School Congregation of Pittsburgh, Pennsylvania.

COUNSEL

Ralph H. German, with him William S. Smith, and Houston, Cooper, Spear and German, for appellant.

Robert Rade Stone, for appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Hoffman, J. Dissenting Opinion by Price, J.

Author: Hoffman

[ 233 Pa. Super. Page 128]

This appeal presents issues concerning the scope of judicial review of awards rendered by common law arbitrators.

[ 233 Pa. Super. Page 129]

The parties entered into a written construction contract on June 13, 1969. Pursuant to the arbitration clause in the contract, the appellant-contractor filed a written demand for arbitration on April 19, 1973, asserting a claim for $322,922.72 in unpaid costs. The appellee-owner submitted an answer and counterclaim. Eight days of hearings were held by an arbitration panel consisting of two lawyers and an engineer. On April 23, 1974, the arbitrators handed down a net award of $225,000 in favor of the appellant. The appellant file a Petition to Confirm the Arbitration Award in the Court of Common Pleas of Allegheny County. The appellee filed an answer and a Petition to Vacate the arbitration award. The lower court, after receiving briefs and hearing oral argument, granted the appellee's motion to vacate and remanded for an arbitration de novo before another panel of arbitrators. On August 1, 1974, this Court granted the appellant's Petition for Allowance of Appeal.

The arbitration clause in the lengthy contract provides in pertinent part: "All claims, disputes and other matters in questions arising out of or relating to, this Contract or the breach thereof, . . . shall be decided by arbitration in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association then obtaining unless the parties mutually agree otherwise. This agreement so to arbitrate shall be specifically enforceable under the prevailing arbitration law. The award rendered by the arbitrators shall be final, and judgment may be entered upon it in accordance with applicable law in any court having jurisdiction thereof."

Initially, it is necessary to decide whether this clause provides for arbitration at common law or arbitration under the Act of 1927.*fn1 The distinction is crucial because the Act provides a much broader scope of judicial review

[ 233 Pa. Super. Page 130]

    than obtains at common law. In order to make the determination, the contractual language and the procedure followed during the arbitration must be examined. Wingate Construction Co. v. Schweizer Dipple, Inc., 419 Pa. 74, 213 A.2d 275 (1965). It is well-settled that the Arbitration Act of 1927 did not abolish the applicability of common law rules to the enforcement of agreements to arbitrate. John A. Robbins Co., Inc. v. Airportels, Inc., 418 Pa. 257, 210 A.2d 896 (1965). Therefore, the parties are free to designate that either statutory or common law rules shall apply. When the agreement is silent, common law rules control the enforcement of the award, unless the parties subsequently agree, expressly or impliedly, to apply the Act. Robbins, supra. See also, La Vale Plaza, Inc. v. R. S. Noonan, Inc., 378 F. 2d 569 (3d Cir. 1967). In the present case, therefore, this Court is limited in its review by the strict standards existing at common law.

Our Court has recently reiterated the applicable standards in passing on a petition to vacate an arbitration award: "Such a petition will not succeed, however, unless it can be shown by clear, precise, and indubitable evidence that a party was denied a hearing, or that there was fraud, misconduct, or other irregularity that has caused the rendition of an unjust, inequitable, or unconscionable award. Allstate Ins. Co. v. Fioravanti, 451 Pa. 108, 299 A.2d 585 (1973); Press v. Maryland Cas. Co., 227 Pa. Superior Ct. 537, 324 A.2d 403 (1974)." United Services Automobile Assoc. Appeal, 227 Pa. Superior Ct. 508, 512-513, 323 A.2d 737 ...


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