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NICHOLSON COMPANY v. PENNSY SUPPLY (04/14/87)

filed: April 14, 1987.

THE NICHOLSON COMPANY, APPELLANT,
v.
PENNSY SUPPLY, INC.



Appeal from the Order entered April 30, 1986, Court of Common Pleas, Cumberland County, Civil Division at No. 3421, 1985.

COUNSEL

James F. Carl, Harrisburg, for appellant.

Brigid Q. Alford, Harrisburg, for appellee.

Wieand, Montemuro and Johnson, JJ.

Author: Johnson

[ 362 Pa. Super. Page 308]

During the fall of 1973 the Nicholson Company (hereinafter referred to as Nicholson) was the general contractor in the construction of an industrial storage silo at the Ralston Purina plant in Mechanicsburg, Pennsylvania. A problem arose during construction and Nicholson absorbed the costs of the delay. Nicholson alleged that the delay was caused by faulty concrete provided by Pennsy Supply, Inc. (hereinafter referred to as Pennsy). Suit was filed but discontinued when the parties executed a written agreement to submit their dispute to common law arbitration. The agreement to arbitrate designated Walter H. Price as an arbitrator with expertise in technical matters relative to the dispute.

Arbitration hearings were conducted on March 27 and 28, 1979. Following the conclusion of the hearings, Nicholson submitted two letters to the arbitrator from a materials and concrete consultant who had testified for Nicholson during the hearings. Pennsy objected to the submission of these letters. On May 28, 1979, the arbitrator rendered a written decision holding both parties responsible for the construction failure, with each to bear half of the cost. Pennsy then filed a petition to vacate the arbitration award, alleging that the award was invalid because of the ex parte presentation of post-hearing evidence. The Court of Common Pleas in Cumberland County affirmed the award and Pennsy appealed. On December 2, 1983, this Court reversed the lower court and vacated the arbitrator's award, holding that the ex parte submission of evidence after the hearings were closed denied Pennsy a fair hearing. See Pennsy Supply, Inc. v. Nicholson Co., 321 Pa. Super. 475, 468 A.2d 808 (1983).

[ 362 Pa. Super. Page 309]

The subject matter of the present appeal is a Petition to Compel Arbitration filed by Nicholson on November 28, 1985. The Court of Common Pleas denied the motion by opinion and order dated April 30, 1986. Nicholson properly brings this appeal from the April 30, 1986 order. See 42 Pa.C.S. § 7342(a) and 42 Pa.C.S. § 7320(a)(1).

Appellant raises a single question for our review: "Should the controversy have been resubmitted to an arbitrator following vacation of the arbitration award by the Superior Court?" The trial court answered this question in the negative. In its written opinion, the court concluded that a controversy may not be resubmitted to an arbitrator once the arbitrator has rendered a final award, citing Hartley v. Henderson, 189 Pa. 277, 42 A. 198 (1899).

The arbitration in this case is governed by common law principles. See Pennsy Supply v. Nicholson, supra, 321 Pa. Super. at 479, n. 1, 468 A.2d at 810, n. 1. It is true that under common law arbitration, an arbitrator completely exhausts his authority when he has made and published a final award.

He cannot correct mistakes in his award, or alter it to conform to his changed views . . . . He can do nothing more in regard to the arbitration or subject matter. He cannot reopen the case, nor make a new or supplemental award or report, nor alter or amend the award already made, nor file additional, explanatory, alternative or amendatory documents. What he has done must stand or fall without further aid or assistance from him.

Hartley v. Henderson, 189 Pa. at 282, 42 A. at 199. This is not to say, however, that a case may not be resubmitted to an arbitrator after the initial award has been vacated by court order. Both this Court and our Supreme Court have remanded common law cases for re-arbitration upon vacating an improper award. See Bole v. Nationwide Insurance Co., 475 Pa. 187, 379 A.2d 1346 (1977); James D. Morrisey, Inc. v. Gross Construction Co., 297 Pa. Super. 151, 443 ...


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