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ANTONIO GENTILE v. SELWYN WEISS (06/15/84)

filed: June 15, 1984.

ANTONIO GENTILE, T/A ANTONIO GENTILE CONSTRUCTION COMPANY, A/K/A ANTONIO GENTILE BUILDING CONTRACTING
v.
SELWYN WEISS, T/A S.S.W. ASSOCIATES, APPELLANT



No. 251 Pittsburgh, 1982, No. 439 Pittsburgh, 1982, Appeal from Order and Judgment of the Court of Common Pleas, Civil Division, of Allegheny County, No. G.D. 79-4255.

COUNSEL

Frederick N. Frank, Pittsburgh, for appellant.

Jennifer F. Rabold, Pittsburgh, for appellee.

Rowley, Wieand and Hester, JJ.

Author: Wieand

[ 328 Pa. Super. Page 477]

Once again this Court has been called upon to acknowledge and then proceed according to the distinction between statutory and common law arbitration to determine the power of a court to modify an award because of alleged errors of law.

Antonio Gentile, appellee, contracted with Selwyn Weiss, appellant, to rehabilitate and convert Weiss' vacant building into apartments. A year later, Weiss exercised the termination provisions of the contract and discontinued Gentile's employment as general contractor. Gentile thereupon commenced an action in the Court of Common Pleas of Allegheny County to recover damages for an alleged wrongful termination of the contract. A Petition to Stay the proceedings was granted by the court on January 14, 1980, and the parties were ordered to arbitration under the terms of their contract. On August 19, 1981, a board of arbitrators awarded Gentile damages of $31,513.14 and denied Weiss' counterclaim. Weiss then filed in the Court of Common Pleas a Motion for Modification and Correction of Arbitration Award, in which he asked the court to modify the award by denying Gentile's claim and by entering an award on Weiss' counterclaim in the amount of $203,395.44. The sole reason cited in appellant's exceptions to the award was that the award was "against the law and [was] such that had it been a verdict of the jury, [the court] would have entered judgment against [Gentile] and for [Weiss] on his counterclaim notwithstanding the verdict." Gentile filed an

[ 328 Pa. Super. Page 478]

Answer containing New Matter, and an evidentiary hearing was held. The court thereafter entered an order as follows:

[A]fter oral argument in open Court and upon review of the briefs and pleadings filed, it appearing to the Court that the language in the Contract giving rise to the dispute provides for Arbitration under common law, and the Defendant not alleging that there was any fraud, corruption or misconduct on the part of the Arbitrators, it is hereby ORDERED and DECREED that the Motion of the Defendant to Modify and Correct the Arbitration Award be and the same is denied.

Weiss appealed.*fn1 He asks that we reverse and remand with instructions to the trial court to consider the errors of law allegedly committed by the arbitrators. In support thereof he argues (1) that the court erred by applying principles pertaining to common law arbitration and (2) that, in any event, Gentile should be estopped from arguing the applicability of common law principles because in the averments of his answer he cited and relied upon principles applicable to the enforcement and modification of statutory arbitration awards. We find these arguments unpersuasive and affirm the order of the trial court.

The agreement between the parties in this case provided in pertinent part as follows:

All claims . . . 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 . . . . Agreement shall be specifically enforceable under the prevailing arbitration law. The award rendered by the arbitrators shall be final, and judgment may ...


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