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ALLEGHENY HOME IMPROVEMENT CORPORATION v. CHARLES FRANKLIN AND RENE FRANKLIN (12/17/82)

filed: December 17, 1982.

ALLEGHENY HOME IMPROVEMENT CORPORATION,
v.
CHARLES FRANKLIN AND RENE FRANKLIN, HIS WIFE, APPELLANTS



NO. 1113 PITTSBURGH, 1980, Appeal from the Order of November 3, 1980, in the Court of Common Pleas of Allegheny County, Civil Action, at No. GD 80-25784.

COUNSEL

W. Thomas Laffey, Jr., Pittsburgh, for appellants.

Charles Means, Pittsburgh, for appellee.

Rowley, Beck and Montemuro, JJ.

Author: Beck

[ 308 Pa. Super. Page 227]

Homeowners Charles and Rene Franklin (Appellants) appeal an order of the Court of Common Pleas of Allegheny County which confirmed an arbitrator's amended award in favor of construction contractor Allegheny Home Improvement Corporation (Appellee) and provided that upon praecipe to the court prothonotary judgment would be entered against Appellants in the amount of three thousand five hundred and sixty-six dollars ($3,566.00). We affirm.

On July 5, 1977, Appellants and Appellee signed a standard short form agreement for small construction contracts ("Contract") supplied by the American Institute of Architects. Under the Contract Appellee agreed to remodel the bathroom of Appellants' home according to stipulated specifications and Appellants agreed to remit installment payments to Appellee upon determination by an architect that Appellee's construction work was not defective. Thereafter, Appellants made payment to Appellee in the amount of $14,142.00 but refused to tender the final installment of $4,401.00, alleging poor workmanship and the installation of a flawed bathtub.

Pursuant to Article 14 ("Arbitration Clause")*fn1 of their Contract Appellants and Appellee submitted their payment

[ 308 Pa. Super. Page 228]

    controversy to an arbitrator.*fn2 The arbitrator's initial award stated that Appellants should pay Appellee the sum of $3,500.00 upon receiving from Appellee a release of all liens and the manufacturer's warranty for the flawed bathtub. The award further provided that the costs of arbitration would be borne equally by the parties.

Subsequently, after the parties had filed a "no-lien" agreement in the Court of Common Pleas of Allegheny County, the arbitrator issued an amended award requiring that Appellants make immediate payment to Appellee of $3,500.00 and that Appellee make immediate tender to Appellants of all available warranty information concerning the flawed bathtub and steam unit. The amended award again provided that the costs of arbitration would be evenly divided between the parties and stated that $66.00 representing Appellants' "one half of the costs"*fn3 was payable immediately.

Thereafter, on October 16, 1980, in the Court of Common Pleas of Allegheny County Appellee filed a "Petition to

[ 308 Pa. Super. Page 229]

Confirm Award of Arbitrator." That same day Appellee ordered the cause for argument, and the court entered an order scheduling the matter for hearing on October 31, 1980. On October 31, 1980, Appellants filed an answer to Appellee's petition, and the court, upon "due consideration" of Appellee's petition,

     ordered . . . the Award of Arbitrator and Amended Award . . . approved and confirmed with judgment to be entered thereon in favor of . . . Allegheny Home Improvement Corporation, in the sum of Three Thousand Five Hundred Sixty-Six ($3,566.00) Dollars and against . . . Charles Franklin and Rene Franklin . . . upon Praecipe to the Prothonotary of this Court.

From the order confirming the arbitrator's award Appellants have appealed to this Court, arguing (1) that Appellee's Contract rights cannot be enforced without an action in assumpsit; (2) that Appellee's use of a petition rather than a complaint violates Pa.R.C.P. No. 1007 and bars consideration of Appellee's claim, and (3) that assuming arguendo a petition can initiate the processing of Appellee's claim, Appellee has ...


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