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Strausser Enters., Inc. v. Segal & Morel, Inc.

Superior Court of Pennsylvania

April 1, 2014

STRAUSSER ENTERPRISES, INC., Appellee
v.
SEGAL AND MOREL, INC., SEGAL AND MOREL AT FORKS TOWNSHIP II, LLC, SEGAL AND MOREL AT FORKS TOWNSHIP III, LLC, SEGAL AND MOREL AT FORKS TOWNSHIP IV, LLC, AND KENNETH SEGAL, Appellants

Argued January 15, 2014

Appeal from the Judgment of the Court of Common Pleas, Northampton County, Civil Division, No(s): C48CV20104518. Before DALLY, J.

Joseph A. Del Sole, Pittsburgh and James T. Smith, Philadelphia, for appellants.

Patrick C. Campbell, Jr., Lima, John M. Elliott, Philadelphia and Dean R. Phillips, Blue Bell, for appellee.

BEFORE: FORD ELLIOTT, P.J.E, OTT and STRASSBURGER,[*] JJ.

OPINION

Page 293

STRASSBURGER, J.

Segal and Morel, Inc., Segal and Morel at Forks Township II, LLC, Segal and Morel at Forks Township III, LLC, Segal and Morel at Forks Township IV, LLC, and Kenneth Segal (collectively Appellants) appeal the April 22, 2013 judgment entered in favor of Strausser Enterprises, Inc. (Strausser). We vacate the judgment and the April 19, 2013 order, which, inter alia, granted Strausser's " Petition to Confirm Arbitration Award Made September 26, 2012." Furthermore, we remand the matter to the trial court with instructions.

The pertinent background underlying this matter can be summarized as follows. " The parties to this action ... were at one time engaged in a number of agreements relative to the development of real estate in Northampton County." Order, 12/13/2012, at 1. The parties agree that the contract which governs their relationship requires them to submit their disputes to common law arbitration.[1]

On May 6, 2010, Strausser filed a " Petition to Compel the Appointment of an Arbitrator to Serve as if Appointed by [Appellants]." On May 28, 2010, the trial court ordered Thomas Wallitsch to serve as an arbitrator as if Appellants appointed him. Appellants sought reconsideration of the May 28, 2010 order. On November 9, 2010, the trial court issued an order in response to Appellants' petition for reconsideration, directing Appellants to name an

Page 294

arbitrator to hear Strausser's breach of contract claims.[2]

Thereafter, Strausser filed an arbitration complaint. Strausser included in this complaint a request for counsel fees that Strausser incurred in litigating its petition to compel arbitration. Appellants' Petition to Vacate Majority [Decision] and Opinion, and to Preclude Entry of Judgment Pending Resolution of Petition, 11/9/2012, Exhibit M, at ¶ ¶ 42-50. Appellants refer to the arbitration panel that considered this complaint as " the Redding Panel." It also is important to note that, prior to the arbitration proceedings in front of the Redding Panel, the parties litigated several issues in front of a different arbitration panel. Appellants refer to this initial panel of arbitrators as " the Walters Panel."

The Redding Panel conducted hearings in late February and early March of 2012. In a document dated September 26, 2012, two of the three arbitrators ruled in favor of Strausser (Majority Decision). In addition to awarding Strausser monetary damages, the Majority Decision stated, inter alia, that it included " [a]n order [ sic ] for a subsequent hearing to determine the amount of [Strausser's] counsel fee award[.]" Id., Exhibit T, at ¶ 6. The Majority Decision also noted, " In the event that the panel determines that it needs [Appellants'] profit/lot to determine damages, the parties have agreed to present that evidence at a later phase of this proceeding...." Id. at n.1.

The Majority Decision was accompanied by an opinion in support thereof (Majority Opinion). Regarding Strausser's claim for counsel fees, the Majority Opinion stated that Strausser prevailed with respect to its petition to compel and the litigation in front of the Redding Panel. Id., Exhibit U, at 31-32. The Majority Opinion, therefore, concluded that, pursuant to the parties' agreement, Strausser is entitled to reimbursement of its counsel fees. The Majority Opinion asserted, " We will hold a subsequent hearing to determine the amount of the counsel fee award." Id. at 32.

The lone dissenting arbitrator, Joel M. Sheer, did not sign the Majority Decision. Instead, he authored a dissenting opinion dated October 10, 2012 (Dissenting Opinion).

On October 26, 2012, Appellants filed a " Motion to Stay and ...


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