J-A20017-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

PELLMAN ELECTRIC, INC.                           IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                         Appellee

                    v.

PARROT CONSTRUCTION CORP.

                         Appellant                     No. 1365 WDA 2015


               Appeal from the Order Entered August 6, 2015
             In the Court of Common Pleas of Allegheny County
                     Civil Division at No: GD 10 002006


BEFORE: BOWES, J., STABILE, J., and MUSMANNO, J.

MEMORANDUM BY STABILE, J.:                        FILED FEBRUARY 9, 2017

      Appellant, Parrot Construction Corp. (“Parrot”), appeals from the

August 6, 2015 order of the Court of Common Pleas of Allegheny County

(“trial court”) granting Pellman Electric, Inc.’s (“Pellman”) motion to enter

judgment on arbitration award. Upon review, we affirm.

      The action arises from a construction subcontract entered into by

Parrot and Pellman. On February 1, 2010, Pellman filed a complaint alleging

three counts of breach of contract against Parrot. On April 20, 2010, Parrot

filed an answer, new matter, and counterclaim asserting breach of contract

and defamation claims. Following multiple discovery motions and motions to

continue trial, the trial court granted a motion to stay on October 23, 2012

after the parties had agreed to private arbitration.
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          On August 5, 2014, the trial court appointed either John Lippl, Esquire,

and/or John Perkins, Esquire, as arbitrator for the private arbitration.                On

April 2, 2015, the parties entered an arbitration agreement which appointed

John Perkins, Esquire, as the arbitrator. An arbitration hearing was held on

April 16, 2015, and on May 12, 2015, the arbitrator issued an award of

$53,369.74 to Pellman.            Subsequently, Pellman filed a motion to enter

judgment on August 6, 2015. That same date, the trial court granted the

motion noting that Parrot failed to file a petition to vacate or modify the

arbitration     award    within    thirty      days.      Parrot   filed   a   motion   for

reconsideration on September 3, 2015.                  The following day Parrot filed a

notice of appeal.       The trial court did not direct Parrot to file a concise

statement of errors complained of on appeal; however, the trial court

entered an opinion on December 1, 2015, noting that it did not have

jurisdiction over the motion for reconsideration as Parrot had filed a notice of

appeal.

          Parrot raises two issues on appeal,1 which we quote verbatim.

     I.      Whether [the trial court] erred when it granted Pellman’s
             Motion for Entry of Judgment on Arbitration Award despite
             Parrot’s timely attempt to exercise their appellate rights in
             accordance with the American Arbitration Association (“AAA”)
             rules governing the arbitration between the parties[.]

             a. Whether the arbitration agreement contemplated appellate
                arbitration[.]
____________________________________________


1
    Parrot’s first issue contains two subparts.



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                b. Whether [Parrot] timely filed for appellate arbitration[.]

     II.        Whether the [trial court] erred when it held that the
                arbitration decision constituted a final award subject to
                confirmation under 42 Pa.C.S.[A.] § 7342[.]

Appellant’s Brief at 8.

           Parrot’s first issue is an issue of contract interpretation, specifically,

whether the arbitration agreement entered into by the parties includes

appellate arbitration.

           In    Pennsylvania,   there   are    two   types   of   arbitration,   statutory

arbitration and common law arbitration. Snyder v. Cress, 791 A.2d 1198

1200 (Pa. Super. 2002).                  In the matter sub judice, the arbitration

agreement contains the following language: “[t]he Arbitrator shall conduct

the hearing in the manner that he deems reasonable and appropriate. The

arbitrator will require witnesses to testify under oath. The Arbitration will be

conducted in accordance with the Arbitration Rules of American Arbitration

Association.” Motion to Enter Judgment on Arbitration Award, 8/6/2015, at

Ex. C.          As the arbitration agreement does not specify that the Uniform

Arbitration Act2 applies and does state the AAA rules apply, the matter arises

under common law arbitration.                   See also Runewicz v. Keystone

Insurance Company, 383 A.2d 189, 191 (Pa. 1978) (an arbitration

agreement that provided the rules of the American Arbitration Association

apply is a common law arbitration).
____________________________________________


2
    73 Pa.C.S.A. §§ 7301-7320.



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      The Appellant’s argument is that the parties had agreed to use the

AAA rules, including the section titled “Optional Appellate Rules.”         These

rules provide

             [w]henever, by stipulation or in their contract, the parties
             have provided for the appeal of an arbitration award
             (“Underlying Award”) rendered under the auspices of the
             American Arbitration Association (AAA), or the Internal
             Centre for Dispute Resolution (ICDR), or have otherwise
             provided for these Appellate Arbitration Rules, they shall
             be deemed to have made these Rules, as amended and in
             effect as of the date of the submission of the appeal, a
             part of their agreement.

AAA Optional Appellate Rule A-1 pg 51. Parrot’s argument is fatally flawed

as the agreement does not state that the optional appellate rules applied.

Without such an agreement, the optional rules clearly do not apply.

Moreover, the title of the AAA optional appellate rules clearly suggests these

appellate rules do not automatically apply and must be elected by the

parties. Parrot’s first claim fails.

      Parrot’s second claim is that the trial court erred, when it entered the

order confirming the arbitrator’s decision and to enter judgment, because

the arbitration appeal was not final.    A common law arbitration award “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.” 42 Pa.C.S.A. § 7341. “Two features of common law arbitrations are

that the award is binding and that any appeal therefrom to the Court of



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Common Pleas must be made within 30 days of the award.” Snyder, 791
A.2d at 1201. As we previously determined that the AAA optional appellate

rules did not apply to the instant action, and Parrot failed to file a petition to

modify or vacate the arbitration award within 30 days, the arbitration was

final and the trial court properly entered judgment upon Pellman’s motion.

Parrot’s second claim fails.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/9/2017




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