Opinion
J-A10031-16 No. 797 WDA 2015
10-27-2016
THOMAS R. MILLER Appellee v. COLLEEN H. MILLER Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order April 20, 2015
In the Court of Common Pleas of Allegheny County
Civil Division at No(s): FD-09-002320-016 BEFORE: GANTMAN, P.J., BENDER, P.J.E., and PANELLA, J. MEMORANDUM BY GANTMAN, P.J.:
Appellant, Colleen H. Miller ("Wife"), challenges the order entered in the Allegheny County Court of Common Pleas, as made final by the entry of a divorce decree on July 2, 2015. We affirm.
A pre-divorce decree order is interlocutory and unappealable before the court enters a divorce decree. Campbell v. Campbell , 516 A.2d 363, 365-66 (Pa.Super. 1986), appeal denied, 515 Pa. 598, 528 A.2d 955 (1987). When Wife filed her notice of appeal challenging the orders dated January 30, 2015, and April 20, 2015, the court had not yet entered a final divorce decree. Therefore, Wife's notice of appeal when filed was technically premature. Id. The subsequent entry of the divorce decree on July 2, 2015, however, rendered both orders ripe for appellate review. Id.
The trial court sets forth the relevant facts and procedural history of this case as follows:
Wife and [Appellee] Thomas Miller ("Husband") were married on June 24, 1972, and separated on October 30,
2007. Wife filed a Complaint in Support on April 20, 2009. Husband filed a Complaint in Divorce on May 5, 2009. Wife filed a Petition Raising Claims for alimony pendente lite ("APL"), alimony and preservation of life and medical insurance policies on September 17, 2009. In response to a Motion presented by Wife, the [c]ourt ordered on September 22, 2009, that the parties evenly split income from marital rental properties and Husband's military pension during the pendency of the action. On October 27, 2009, Wife was granted a $20,000 advance for litigation costs. On February 24, 2010, the [c]ourt issued an order prohibiting both parties from dissipating marital assets. Both parties were granted a $20,000 advance against equitable distribution per Order of the[c]ourt dated August 30, 2010. The [c]ourt referred the case to Master Miller for a three (3) day trial to address all outstanding issues on December 17, 2010. The parties underwent extensive discovery and presented several discovery-related motions to the [c]ourt. An equitable distribution hearing was held before Master Miller on May 9, 10, 11, and 12, 2011. The transcript shows that on May 12, 2011[,] the parties discontinued the hearing prematurely, as they anticipated settling the case or continuing the hearing in September 2011.
The parties did not return for additional testimony before Master Miller. On January 28, 2012, the parties signed a "Binding Mediation Agreement" ("BMA"). What the parties agreed to by signing that document is an issue in this appeal.... In the BMA the parties named Dr. Joseph Besselman as their "Mediator." The process that occurred during the following two (2) years is disputed.... Dr. Besselman produced a "Mediation Settlement Agreement" ("MSA") outlining a resolution to the parties' disputed claims. Dr. Besselman and Husband signed the agreement on June 6, 2014. Wife did not sign the agreement. On
July 29, 2014, Husband filed a Motion for Entry of Final Decree in Divorce and Equitable Distribution Order wherein he sought to have the MSA enforced. Both parties submitted briefs to the [c]ourt regarding the enforceability of the MSA. The [c]ourt held a conciliation on the matter on September 22, 2014. Oral argument on the issue was held on January 30, 2015, and a fact-finding hearing was held on April 13, 2015. On April 20, 2015, the [c]ourt issued an Order holding that:
(Trial Court Opinion, filed on July 21, 2015, at 1-3) (citations to record omitted). On May 18, 2015, Wife filed a notice of appeal challenging the court's orders of January 30, 2015, and April 20, 2015. By order entered May 22, 2015, the court directed Wife to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b); and Wife complied on June 9, 2015. The court entered a divorce decree on July 2, 2015, which incorporated but did not merge the MSA.1. Wife failed to show that her signature on the BMA had been obtained fraudulently.
2. The BMA was enforceable.
3. Wife failed to show fraud, misconduct, corruption or other such irregularity in the arbitration process which caused the arbitrator to render such an unjust, inequitable and unconscionable award so as to make the award unenforceable.
4. Wife failed to show that any issues resolved in the MSA were outside the scope of arbitration agreed to by the parties.
5. The MSA was enforceable.
After accepting comments from the parties, Dr. Besselman sent the parties a revised MSA on June 27, 2014. Wife did not sign the revised agreement either. Nevertheless, in the parties' initial BMA, they agreed to submit the matter to binding arbitration and that the MSA would become final/binding on the parties within 14 days of Dr. Besselman's signature on the MSA, regardless of whether either party failed to sign it.
The divorce decree in part states: "The Binding Arbitration Agreement executed on July 9, 2014, shall be incorporated but not merged into this Decree for the limited purposes of enforcement and not modification" (emphasis added). We think the court meant to incorporate but not merge the MSA into the decree, because the MSA was the agreement made final in July 2014. The court might well consider amending the decree nunc pro tunc to specify the MSA as incorporated but not merged into the divorce decree.
Wife raises the following issues for our review:
WHETHER THE TRIAL COURT ERRED AS A MATTER OF LAW AND ABUSED ITS DISCRETION WHEN IT DETERMINED THAT THE ARBITRATOR POSSESSED AUTHORITY TO MAKE BINDING AWARDS ON THE ISSUES OF ALIMONY AND SUPPORT WHERE THOSE MATTERS WERE OMITTED AND NOT OTHERWISE IDENTIFIED IN THE [BMA] SIGNED BY THE PARTIES.(Wife's Brief at 3-4).
WHETHER THE TRIAL COURT ERRED AS A MATTER OF LAW OR ABUSED ITS DISCRETION BY FAILING TO SET ASIDE OR OTHERWISE VACATE THE DECISION OF THE ARBITRATOR ON THE GROUNDS OF IRREGULARITY AND LACK OF DUE PROCESS SINCE THE ARBITRATOR NEVER CONDUCTED A HEARING, IDENTIFIED THE ISSUES TO BE ARBITRATED OR NOTIFIED THE PARTIES OF HIS INTENTION TO ISSUE A FINAL RULING UPON THE ISSUES ALLEGEDLY SUBMITTED TO HIM.
WHETHER THE TRIAL COURT ERRED AS A MATTER OF LAW OR ABUSED ITS DISCRETION BY FAILING TO SET ASIDE OR OTHERWISE VACATE THE DECISION OF THE ARBITRATOR BECAUSE OF FRAUD PURSUANT TO THE FACTS ADDUCED AT THE HEARING WHICH PROVED THAT [WIFE], SIGNED THE [BMA] WITH THE KNOWLEDGE AND EXPECTATION THAT THE ARBITRATOR WOULD BE UNABLE TO MAKE ANY BINDING DECISION AS TO MATTERS OF ALIMONY AND SUPPORT.
Review of a common law arbitration award is set forth in Subchapter B of Pennsylvania's Uniform Arbitration Act as follows:
§ 7341. Common law arbitration42 Pa.C.S.A. § 7341. "The arbitrators are the final judges of both law and fact, and an arbitration award is not subject to a reversal for a mistake of either." Garango v. Terminix Intern. Co., L.P., 784 A.2d 188, 193 (Pa.Super. 2001) (internal citations and quotes omitted). Thus, neither the appellate court "nor the trial court may retry the issues addressed in arbitration or review the tribunal's disposition of the merits of the case." F.J. Busse Co., Inc., v. Sheila Zipporah , L.P., 879 A.2d 809, 811 (Pa.Super. 2005), appeal denied, 587 Pa. 694, 897 A.2d 457 (2006) (quoting McKenna v. Sosso , 745 A.2d 1, 4 (Pa.Super. 1999), appeal denied, 563 Pa. 677, 759 A.2d 924 (2000)). "Rather, we must confine our review to whether the appellant was deprived of a hearing or whether fraud, misconduct, corruption or other irregularity tainted the award." McKenna , supra at 4 (internal quotations omitted).
The award of an arbitrator in a nonjudicial arbitration which is not subject to Subchapter A (relating to statutory arbitration) or a similar statute regulating nonjudicial arbitration proceedings 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.
In the context of common law arbitration, "irregularity refers to the process employed in reaching the result of the arbitration, not to the result itself." Garango , supra. "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., Inc., supra (citing Allstate Ins. Co. v. Fioravanti , 451 Pa. 108, 299 A.2d 585 (1973)).
In most cases where an irregularity is alleged, our appellate courts have denied relief. See , e.g., Runewicz v. Keystone Ins. Co., [476 Pa. 456, 383 A.2d 189 (1978)] ([holding where] appellant alleged arbitrator's award contradicted insurance policy language [there was] no irregularity even though award patently at odds with contract); Hain v. Keystone Ins. Co., 326 A.2d 526, 527 ([Pa.Super.] 1974) ([stating:] "While the damages granted in this case may have been at variance with the language of [the insurance policy], we do not believe that the award meets the Fioravanti criteria for vacating an arbitration decision"). Compare Paugh v. Nationwide Ins. Co., 420 A.2d 452 ([Pa.Super.] 1980) ([holding] irregularity found when plaintiffs kept pertinent testimony from arbitrators, therefore precluding arbitrators from fashioning award limiting plaintiffs' possible double recovery).Chervenak , Keane & Co. (CKC Associates) v. Hotel Rittenhouse Associates , Inc., 477 A.2d 482, 485 (Pa.Super. 1984). "In addition, as the arbitrator's authority is restricted to the powers the parties have granted [him] in the arbitration agreement, we may examine whether the common law arbitrator exceeded the scope of his authority." Garango , supra.
Nevertheless,
[T]he law favors non-judicial dispute resolution that the parties have agreed to. [Alternative] 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.F.J. Busse Co., Inc., supra at 811. Thus, every presumption favors the validity of the arbitration award. Reinhart v. State Auto. Ins. Ass'n , 363 A.2d 1138 (Pa.Super. 1976). In other words, as a general rule "[a]rbitration agreements are declared by statute to be 'valid, enforceable and irrevocable[.]'" U.S. Claims , Inc. v. Dougherty , 914 A.2d 874, 878 (Pa.Super. 2006), appeal denied, 593 Pa. 729, 928 A.2d 1291 (2007) (citing 42 Pa.C.S.A. § 7303). Therefore, "[j]udicial review of a common law arbitration award is very narrow." Vogt v. Liberty Mut. Fire Ins. Co., 900 A.2d 912, 919 (Pa.Super. 2006).
After a thorough review of the record, the briefs of the parties, the applicable law, and the well-reasoned opinion of the Honorable Donald R. Walko, Jr., we conclude Wife's issues on appeal merit no relief. The trial court opinion comprehensively discusses and properly disposes of the questions presented. ( See Trial Court Opinion, filed July 21, 2015, at 4-16) (finding: text of parties' BMA shows that both parties intended to be bound by result of process; Wife's contention that parties did not intend to engage in common law arbitration is at odds with document she signed; parties agreed to participate in common law arbitration and were therefore bound by its result; as to scope of arbitration agreement, full scope of agreement remained unknown by design; Paragraph 6 of BMA empowered arbitrator to submit MSA to court to obtain final resolution of parties' divorce; parties' divorce could not be finally resolved if issues remained outstanding; in MSA, arbitrator rendered decisions on all outstanding issues, including APL and alimony; scope of BMA as whole was ambiguous; parties' testimony on their intent and circumstances surrounding execution of BMA was necessary for court to determine scope of BMA; court, therefore, held fact-finding hearing; court's decision to hear evidence and testimony on scope of BMA was proper; Wife cites no authority to support her contention that alimony/APL/support were outside scope of BMA; Wife also presented her claim for alimony to arbitrator; court declared Wife's testimony on scope of BMA was incredible; Husband testified that he understood BMA put all issues pending in parties' divorce case into arbitration; court found Husband's testimony on this point credible; Wife offers nothing to justify invalidating MSA award because arbitrator specifically selected by parties was not legally trained; likewise, court rejected Wife's due process claim, where law permits parties to waive formal arbitration hearing, and Wife's positions on alimony, support and APL were sent to arbitrator via emails, which she did not challenge as either rejected or undelivered; Wife's allegations of inequity in MSA award consisted of unsupported allegations and approximations, which was sufficient evidence that she was unhappy with award but not that it was "inequitable"; Wife also failed to show arbitration process was conducted with unfair bias or fraud favoring Husband, or with any irregularity or mistake, sufficient to invalidate MSA; based on evidence presented, BMA and MSA must stand). Accordingly, we affirm on the basis of the trial court opinion.
Additionally, in her brief, Wife contends the BMA is unenforceable because: (1) the parties did not have a meeting of the minds when they executed the BMA; (2) the BMA is the product of Husband's fraudulent conduct; and (3) the BMA is unconscionable. Wife also asserts in her brief the arbitration procedure was improper for several additional reasons. Specifically, Wife avers she did not receive notice of Husband's positions and the disputed issues Husband submitted to Dr. Besselman. Wife alleges she was unaware Dr. Besselman permitted Husband to make corrections to the first draft of the MSA. Wife also maintains Dr. Besselman was biased in favor of Husband because the two were former colleagues and friends. Further, Wife claims there is no evidence Dr. Besselman considered Husband's possible improprieties. Wife failed to specifically raise these challenges to the BMA and the arbitration process in her Rule 1925(b) statement. Therefore, Wife has waived these issues for purposes of appeal. See Lineberger v. Wyeth , 894 A.2d 141, 148-49 (Pa.Super. 2006) (stating issues not raised in Rule 1925 statement will be deemed waived). See also Commonwealth v. Hill , 609 Pa. 410, 428, 16 A.3d 484, 494 (2011) (stating: "Rule 1925(b) waivers may be raised by the appellate court sua sponte"); In re L .M., 923 A.2d 505 (Pa.Super. 2007) (applying Rule 1925 waiver standards in family law context).
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 10/27/2016
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