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Rekun v. Pelaez

June 22, 2009

TIFFANY REKUN, INDIVIDUALLY AND AS ADMINISTRATRIX OF THE ESTATE OF NEIL REKUN
v.
CARL PELAEZ, APPELLANT



Appeal from the Judgment entered July 2, 2008 In the Court of Common Pleas of Pike County, Civil, No. 1277-2001-Civil.

The opinion of the court was delivered by: Klein, J.

BEFORE: STEVENS, LALLY-GREEN and KLEIN, JJ.

OPINION

¶ 1 Tiffany Rekun, the Administratrix of the Estate of Neil Rekun, initially filed suit against Carl Pelaez after Neil Rekun was killed while riding a motorcycle when hit by Pelaez. Ultimately, the parties agreed to binding arbitration before former Court of Common Pleas Judge Thomas Raup. Judge Raup found Neil Rekun 60% negligent and Carl Pelaez 40% negligent and determined the damages to be $800,000. The parties agreed on a cap on damages of $100,000.

¶ 2 Pelaez filed a motion to confirm the arbitrator's award because under Pennsylvania's Comparative Negligence Act, a plaintiff cannot recover if he or she is more than 50% negligent. See 42 Pa.C.S.A. § 7102(a); see also Gorski v. Smith, 812 A.2d 683, 703 (Pa. Super. 2002). Rekun argues that the language the parties had agreed on, "comparative fault," did not include a bar on recovery if a plaintiff was more than 50% negligent, just a proportionate reduction. Pelaez also challenged jurisdiction, since the accident occurred in New Jersey and Pelaez lived and was served in New Jersey.

¶ 3 We agree with the trial court that there is jurisdiction in Pennsylvania, since the parties mutually agreed to conduct a non-court annexed arbitration in Pennsylvania. However, because we find that 1) "comparative negligence" and "comparative fault" are analogous terms; 2) the document was drafted by Rekun's counsel and should be read against him; and 3) the nature of the negotiations was to incorporate Pennsylvania's traditional comparative negligence structure, we disagree with the trial judge that Rekun can recover if more than 50% negligent. Therefore, we reverse and remand with directions to confirm the arbitration award and enter judgment in favor of Pelaez.

Facts and Procedural History

¶ 4 On August 5, 2005 Pelaez's counsel sent a letter to Rekun's counsel proposing a jury trial on liability and stated that if Rekun was found 51% or more negligent, he would get nothing. Additionally, the letter proposed that if liability is assessed 50/50%, Rekun would get $50,000.00, but if Pelaez was found to be 51% negligent or more then Rekun would recover the amount commensurate with the percentage of Pelaez's negligence with the maximum amount recoverable capped at $100,000.00. Rekun's counsel rejected this proposal on August 8, 2005.

¶ 5 On November 27, 2006, Rekun's counsel proposed application of "comparative fault" whereby "if that award were $900,000.00 and the judge found 40% comparative, the award would be $540,000.00 but the amount owed would still be $100,000.00." (Petition to Enforce Arbitration Decision and Enter Judgment in Favor of Defendant, Exhibit A.) Pelaez's counsel agreed to the proposal on January 4, 2007.

¶ 6 On March 12, 2008 Judge Raup found Neil Rekun 60% negligent and Pelaez 40% negligent and determined the damages to be $800,000, which were capped at $100,000 by agreement of the parties. On March 19, 2008 Pelaez filed a Petition to Enforce Arbitration Decision and Enter Judgment in Favor of Defendant. On June 27, 2008 the trial court denied Pelaez's petition and entered on the docket on June 2, 2008.

¶ 7 Pelaez now appeals, claiming that the trial court lacked jurisdiction and venue where the accident occurred in New Jersey, he resides in New Jersey and was served in New Jersey. Second, Pelaez claims that the principles of comparative fault and comparative negligence are one and the same and because Rekun was found to be 60% negligent judgment should be entered in favor of Pelaez.

Discussion

ΒΆ 8 We first note that more careful drafting by the attorneys in this case would have avoided the need for further litigation after arbitration. There is no excuse for either counsel's failure to make clear what the parameters of arbitration are in a six-figure case. While we find that the agreement does call for the standard concept of comparative negligence (sometimes called "comparative fault") to apply, this is a ...


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