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JAMES D. MORRISEY v. GROSS CONSTRUCTION CO. (03/19/82)

filed: March 19, 1982.

JAMES D. MORRISEY, INC., APPELLANT,
v.
GROSS CONSTRUCTION CO., INC., APPELLEE



No. 1322 Philadelphia, 1980, Appeal from the Order of the Court of Common Pleas of Montgomery County, Civil Division at No. 78-12574.

COUNSEL

Carl F. Hepler, Jr., Bensalem, for appellant.

Alan G. Gershenson, Philadelphia, for appellee.

Wickersham, Popovich and Watkins, JJ.

Author: Popovich

[ 297 Pa. Super. Page 152]

OPINION

The appellant, James D. Morrisey, Inc., appeals from the lower court's order denying its "Petition To Vacate Arbitration Award." We vacate and remand for proceedings consistent with this opinion.

The facts consist of the following: Appellant, a sub-contractor, entered into two separate agreements with appellee, Gross Construction Co., Inc. -- a general contractor, concerning two phases of a single job. The first contract was signed in August, 1971 (Phase I) and the second was executed in January, 1974 (Phase II).

On December 23, 1976, appellant filed a two count Complaint in Assumpsit against appellee claiming $12,925.00 in Count I and $749.92 in Count II for goods and services delivered to appellee's jobsite in the Regency Park Apartments in Philadelphia (Phase II). As with Phase I, Phase II of the work was governed by a written document containing an arbitration provision calling for all controversies arising under the contract to be resolved by means of arbitration. The clause provided in part that: "The rules of the American Arbitration Association shall control and any award rendered in the arbitration shall be binding and conclusive upon the parties and shall not be subject to appeals or retrying by any court . . . . Three arbitrators shall be appointed; Contractor shall designate an arbitrator, Sub-contractor shall designate an arbitrator, and the two arbitrators so chosen shall designate a third." Thus, when the dispute arose, both sides agreed to submit the matter to binding

[ 297 Pa. Super. Page 153]

    arbitration, and, in accordance therewith, appellant's Complaint was discontinued.

On September 1, 1977, appellant filed a demand for arbitration with the American Arbitration Association (AAA). Appellee responded by filing a counterclaim, alleging that $6,907.38 was paid to the appellant for work that was never performed. In answer, appellant amended its original claim to include a request for an additional $29,697.75. According to appellant, such figure related to monies due it from appellee for services rendered under the August, 1971 agreement (Phase I). In particular, appellant averred appellee owed it: (a) $20,900.00 for retaining work; and (b) $8,797.75 for extra excavation. All parties agree that the added amount sought, albeit relating to work performed in 1971, was not billed to appellee until the third week in November, 1977, which, interestingly enough, came after appellee filed its counterclaim involving Phase II of the job.

After the appellant selected its arbitrator (Robert Lipschutz) and appellee chose its representative (Philip Steinman), the two arbitrators then decided upon the third panel member (Frederick Milstein). The arbitration hearing was conducted in June of 1978, and the ...


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