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[U] Burda v. Korenman

Superior Court of Pennsylvania

January 15, 2014

STEVEN BURDA, Appellant
v.
ALLA KORENMAN F/K/A ALLA BURDA Appellee STEVEN BURDA, Appellant
v.
ALLA KORENMAN F/K/A ALLA BURDA Appellee

NON-PRECEDENTIAL DECISION

Appeal from the Order Entered December 6, 2012 In the Court of Common Pleas of Montgomery County Civil Division at No(s): 2010-26928

Appeal from the Order Entered December 13, 2012 In the Court of Common Pleas of Montgomery County Civil Division at No(s): 2010-26928

BEFORE: BOWES, J., DONOHUE, J., and OTT, J.

MEMORANDUM

OTT, J.

Steven Burda, pro se, brings this consolidated appeal from the order entered on December 6, 2012, and the "corrective order" entered on December 13, 2012, [1] in the Court of Common Pleas of Montgomery County, dismissing his petition to vacate the final arbitration award of September 4, 2012, and his petition for modification or correction of the final arbitration award of September 4, 2012.[2] This appeal arises from Burda's divorce action, during the course of which the parties agreed and contracted to submit economic claims in the pending divorce to binding common law arbitration. Burda contends he is entitled to a new trial or a remand for correction or modification of the arbitration award entered in this case. Based upon the following, we affirm.

The trial court has aptly summarized the background of this case, as follows:

[Burda] and [Alla Korenman] were married on March 15, 2008. [Burda] filed a Divorce Complaint in Montgomery County on September 10, 2010. [The trial court] issued a divorce decree dated September 14, 2012, which incorporated an arbitration award issued by Arbitrator Mary Cushing Doherty, Esquire, on September 4, 2012.
The parties entered into an Arbitration Agreement in which they agreed to be bound by the rules of common law arbitration. See Arbitration Agreement, ¶1.a.
[Burda] received notice of the arbitration award on September 5, 2012. (N.T., 12/6/12, p. 30). [Thereafter, the arbitration award was incorporated into the parties' divorce decree, which was filed on September 14, 2012.]
***
On October 4, 2012, [Burda] filed two motions. The first was a Petition to Vacate Arbitration Award. The second was a Petition to Modify or Correct Arbitration Award. [The motions were filed within thirty days of the arbitration award, in accordance with the arbitration agreement. See Arbitration Agreement, ¶7(e).]
On December 6, 2012, [the trial court] held a hearing regarding, inter alia, [Burda's] Petition to Vacate Arbitration Award and [Burda's] Petition to Modify or Correct Arbitration Award. [The trial court] entered an Order on December 6, 2012 that, inter alia, denied [Burda's] request to vacate or modify/correct the arbitration award.

Trial Court Opinion, 2/8/2013, at 1–2. Following the denial of his petitions, Burda filed a timely appeal.[3]

Burda has framed the following issue for this Court's review:

Is [Burda] entitled to a new trial or [to have this case] be sent back to the arbitrat[or] to correct or modify the Arbitration Award when, applying the following 42 Pa.C.S. § 7315(a)(1) and 42 Pa.C.S. § 7315(a)(2) and 42 Pa.C.S. § 7315(a)(3), 42 Pa.C.S. § 7315(c), 42 Pa.C.S. § 7314(a)(1)(ii) and 42 Pa.C.S. § 7314(a)(1)(iii) and 42 Pa.C.S. § 7314(a)(1)(v) 42 Pa.C.S. § 7314(b) and 42 Pa.C.S. § 7314(c), 42 Pa.C.S. § 7319(1), 42 Pa.C.S. § 7341, 42 Pa.C.S. § 742, Section 7(e) of the Arbitration Agreement (filed with Petitions on 10/04/2012) and relevant lower court dockets histories on case 2010-26928, where the trial court abused its discretion and/or misapplied the law by omitting, ignoring or failing to abide by the law/statutes, arbitration agreement section 7(e), or both?

Burda's Brief at 10.[4] [5]

As the parties in this case agreed to submit their economic claims to common law arbitration, [6] we review the trial court's decision for an abuse of discretion or an error of law. See Bridges PBT v. Chatta, 821 A.2d 590, 592 (Pa. Super. 2003) (citation omitted), appeal denied, 829 A.2d 310 (Pa. 2003). In this regard,

[t]he review of a common law arbitration award is narrowly circumscribed. This is because
the law favors non-judicial dispute resolution that the parties have agreed to. Alternate dispute resolution is economical in terms of time, expenditure of judicial resources and transactional costs. Limited judicial review also imposes finality in a contested matter. To permit anything but limited judicial review defeats the purpose of … arbitration.
The award of an arbitrator in a nonjudicial arbitration … is binding and may not be vacated or modified unless it is clearly shown that a party was denied a hearing or that fraud, misconduct, corruption or other irregularity caused the rendition of an unjust, inequitable or unconscionable award.
***
Furthermore, an appellant "bears the burden to establish both the underlying irregularity and the resulting inequity by 'clear, precise and indubitable evidence.'" "In this context, irregularity refers to the process employed in reaching the result of the arbitration, not the result itself." A cognizable irregularity may appear in the conduct of either the arbitrators or the parties. Our Supreme Court has stated that the phrase "other irregularity" in the process employed imports "such bad faith, ignorance of the law and indifference to the justice of the result" as would cause a court to vacate an arbitration award.

F.J. Busse Co. v. Zipporah, L.P., 879 A.2d 809, 811 (Pa. Super. 2005) (citations and footnote omitted) (holding error of law by the arbitrators is not a basis upon which a trial court, which is reviewing an arbitration decision, may modify that decision), appeal denied, 897 A.2d 457 (Pa. 2006). See also 42 Pa.C.S. § 7341.[7]

Upon careful examination of the record, the transcript of the December 6, 2012 hearing, the brief filed by Burda in support of this appeal, and the trial court opinion, we find no error of law or abuse of discretion committed by the trial court. We agree with the court that none of the arguments advanced by Burda - including, that the arbitrator conferred by telephone with the parties' attorneys, without him; that the arbitrator made miscalculations; that the arbitrator exceeded her power; and that the arbitrator misapplied the law - present grounds upon which to vacate or modify the arbitration award.

Furthermore, the trial court opinion fully discusses and properly disposes of the all of the issues presented in this appeal. See Trial Court Opinion, 2/8/2013, at 2–6 (finding: (1) Sections 7314 and 7315 of the Judicial Code do not apply to common law arbitrations; (2) the grounds upon which a party may seek to either vacate or modify a common law arbitration award are limited by Section 7341 to denial of a hearing, and fraud, misconduct, corruption or other irregularity, none of which were shown in this case; (3) attorney fees were properly awarded to Alla Korenman as Paragraph 7(f) of the arbitration agreement permits an award of attorney fees incurred as a result of the appeal of the arbitration award; (4) Burda had the opportunity to present evidence that would justify the vacation or modification of the arbitration award, but failed to present such evidence; (5) Burda's Emergency Petition for Stay of Arbitration Award, dated September 4, 2012, was previously denied by order dated November 29, 2012, and was not at issue during the hearing on December 6, 2012; and (6) The corrective order entered on December 13, 2012, following Burda's appeal, merely corrected an error, i.e., failing to note in the body of the Order entered on December 6, 2012 that the court had also considered Burda's petition to vacate the final arbitration award, and such correction is permissible pursuant to Pa.R.A.P. 1701(b)(1)).

Accordingly, we affirm the court's orders of December 6, 2012, and December 13, 2012, dismissing Burda's petition to vacate final arbitration award and petition to modify or correct final arbitration award on the basis of the trial court's opinion.

Orders affirmed.

Judgment Entered.


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