Fisher, J. v. Kaczorowski, E., M.D.

• Court: Superior Court of Pennsylvania
• Decided: February 9, 2015
• Docket: 2094 MDA 2013
• Status: Unpublished

Opinion

J-A31036-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

JUDITH M. FISHER IN THE SUPERIOR COURT OF PENNSYLVANIA Appellant

v.

EUGENE A. KACZOROWSKI

Appellee No. 2094 MDA 2013

Appeal from the Judgment Entered April 11, 2014 In the Court of Common Pleas of Luzerne County Civil Division at No: 16145 of 2008

BEFORE: BOWES, OTT, and STABILE, JJ.

MEMORANDUM BY STABILE, J.: FILED FEBRUARY 09, 2015

Appellant Judith M. Fisher, pro se, appeals from the April 11, 2014

judgment entered in the Court of Common Pleas of Luzerne County (trial

court) against her and in favor of Appellee Eugene A. Kaczorowski. Upon

review, we affirm.

Briefly, in 2009 Appellant filed a complaint against Appellee in the trial

court alleging medical malpractice. On November 20, 2012, prior to the trial

scheduled for November 27, 2012, Appellant’s counsel informed the trial

court that, in lieu of a jury trial, the parties would submit this matter to

arbitration. Subsequently, the parties entered into a binding common law

arbitration agreement. The parties, by their respective counsel, also J-A31036-14

executed a high/low arbitration agreement.1 Under the high/low agreement,

Appellant’s recovery was $0.00/$200,000.00.2 See High-Low Arbitration

Agreement, 2/11/13, at ¶¶ 9-10. Following the March 13, 2013 arbitration

hearing, Arbitrator (former Judge) Thomas A. Wallitsch issued an award for

$0.00 in favor of Appellee on April 1, 2013. A copy of the award was mailed

to the parties’ respective counsel.

On May 13, 2013, Appellant filed a document in the trial court

removing her counsel from the case and proceeding pro se. On June 3,

2013, Appellant filed a “Motion to Vacate Arbitration Award,” alleging:

1. The arbitration was never filed in the proper court by either attorneys. 2. [Appellant] never signed on for arbitration, i [sic], [Appellant], never was informed that it was binding by certified mail, or any mail. 3. The arbitration decision was never filed by either acting attorneys, [Appellee’s] or [Appellant’s]. 4. [Appellant] was never given [her] full, entitled six hours of arbitration hearing. [Appellant] had a five day [sic] jury trial scheduled at the proper court, and was supposed to have [her] full six hours of arbitration, so that [her] attorney could fully explain and present [her] entire case. The second part of [her] malpractice case, which would have included the loaa [sic] of quality of life, pain, suffering, and embarrassment and humiliation, or any future complications, and more, were not brought into arbitration. The arbitration ended two hours early.

____________________________________________

1 “A high/low agreement is a settlement in which a defendant agrees to pay the plaintiff a minimum recovery in return for the plaintiff’s agreement to accept a maximum amount regardless of the outcome of the [negotiations].” Marlette v. State Farm Mut. Auto Ins. Co., 10 A.3d 347, 352 (Pa. Super. 2010) (internal citations and quotations omitted), vacated on other grounds, 57 A.3d 1224 (Pa. 2012). 2 The validity of this agreement is not before this Court.

-2- J-A31036-14

5. ADR[]OPTIONS or the arbitrator failed to make sure the case was filed at the proper courts, leaving [Appellant] to believe that this was corruption and fraudulent [sic]. 6. The arbitrator and ADR[]OPTIONS denied [Appellant her] DUE PROCESS (RIGHTS), to request a STATEMENT OF DECISION, and a list of all exhibits, sworn declarations, depositions, all evidence given to the arbitrator to go to deliberation with. 7. Arbitration went ahead with arbitration hearing even though the arbitration was never filed in the proper courthouse of Luzerne County. 8. Prejudiced [sic] of a parties [sic] rights were brought on to [Appellant]. Appellant did not have a fair arbitration hearing because [Appellant] felt the [arbitrator] was unable to be impartial because everybody ([Appellant’s] attorney, [Appellee’s] attorney, and [the arbitrator]), were all on a first[-]name basis. 9. [Appellant] was never severed [sic] with a certified letter, or mailed a letter informing [Appellant] of [her] arbitration decision. [Appellant] was emailed it. 10. (UNFAIR), To hear evidence useful to [Appellant’s] care [sic] [Appellant’s] attorney allowed [Appellant’s] TWO medical expert witness’s [sic] to be removed from [Appellant’s] case by the defense, which gave [Appellant] no chance at getting a jury trial or a fair arbitration hearing resulting in a negative outcome for [Appellant], although the defense though did have their own medical expert witness present. 11. [Appellant’s] attorney advised [Appellant] to have [Appellant’s daughter] as a personal witness to testify on [Appellant’s] behalf at arbitration, but never brought her into the arbitration.

Motion to Vacate Arbitration Award, 6/3/2013 (emphasis in original). On

July 15, 2013, Appellee filed a response, denying Appellant’s allegations.

Appellee filed a “Motion to Enforce the Arbitration Agreement and Arbitration

Decision of Thomas A. Wallitsch” on July 22, 2013. On October 22, 2013,

the trial court granted Appellee’s motion to enforce the arbitration

agreement and denied Appellant’s motion to vacate the same.

Following Appellant’s filing of a Pa.R.A.P. 1925(b) statement of errors

complained of on appeal, the trial court issued a Pa.R.A.P. 1925(a) opinion.

In its Rule 1925(a) opinion, the trial court noted that under Pennsylvania

-3- J-A31036-14

law, a challenge to an arbitration award must be made within 30 days of the

date of the award. See Trial Court Opinion, 3/3/14, at 3. The court further

noted Appellant filed her motion to vacate the arbitration award more than

two months after the arbitrator had issued the award on April 1, 2013. See

id. at 4 (noting “[t]he petition to vacate was initiated on June 3, 2013,

which is in excess of two (2) months after the award.”). Because Appellant

moved to vacate the arbitration award after the 30-day period to challenge

the award had expired, the trial court concluded Appellant’s motion to vacate

was untimely.3

On appeal,4 Appellant raises a single issue for our review: ____________________________________________

3 As we consistently have explained, under Section 7342(b) of the Judicial Code, 42 Pa.C.S.A. § 7342(b), any challenge to the arbitration award must be made in an appeal to the Court of Common Pleas, by filing a petition to vacate or modify the arbitration award within 30 days of the date of the award. A party must raise alleged errors in the arbitration process in a timely petition to vacate or modify the arbitration award or the claims are forever waived. U.S. Claims, Inc. v. Dougherty, 914 A.2d 874, 877 (Pa. Super. 2006) (emphasis added), appeal denied, 928 A.2d 1291 (Pa. 2007). 4 Our standard of review of common law arbitration is very limited: The award of an arbitrator in a nonjudicial arbitration which is not subject to statutory arbitration or to 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. The arbitrators are the final judges of both law and fact, and an arbitration award is not subject to reversal for a mistake of either. A trial court order confirming a common law arbitration award will be reversed only for an abuse of discretion or an error of law. (Footnote Continued Next Page)

-4- J-A31036-14

Did the lower court commit reversible error by affirming the arbitration decision when Appellant timely notified the court via motion to vacate that she did not knowingly, voluntarily or intelligently agree to arbitration or otherwise waive her right to a trial by jury.

Appellant’s Brief at iii. After careful review of the parties’ briefs, the record

on appeal, and the relevant case law, we conclude that the trial court’s Rule

1925(a) opinion authored by the Honorable David W. Lupas adequately

disposes of Appellant’s issue on appeal.5 See Trial Court Opinion, 3/3/13, at

3-4. We, therefore, affirm the trial court’s order denying as untimely

Appellant’s motion to vacate the arbitration award. We direct that a copy of

the trial court’s March 3, 2013 Rule 1925(a) opinion be attached to any

future filings in this case.

Judgment affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 2/9/2015

_______________________ (Footnote Continued)

Dougherty, 914 A.2d at 876-77 (internal citations and quotation marks omitted). 5 We note that many of Appellant’s claims relate to the conduct of her former counsel. We decide here only that the trial court was correct in its disposition of Appellant’s petition to vacate the arbitration award and we do not address the merits, if any, of any claims Appellant has alleged against her former counsel.

-5- Circulated 01/28/2015 12:09 PM ,I \ IN THE COMMONWEALTH OF PENNSYL VANIA ~ JUDITH M. FISHER, IN THE COURT OF COMMON PLEAsr OF LUZERNE COUNTY ~ Plaintiff, 1 W

v. CIVIL ACTION - LAW

EUGENE A. KACZOROWSKI, M.D.,

Defendant. No. 2008-16145

1925(a) OPINION

Thi s 1925(a) Opinion is written in support of the October 22, 2013 Order of this Court,

denying the motion to vacate arbitration award of Plaintiff Judith M. Fisher ("Plaintiff').

I. BACKGROUND

A. Procedural Background.

Plaintiff initiated the instant medical malpractice action against Defendant Eugene A.

Kaczorowski, M.D. ("Defendant") on December 1, 2008, by way of a writ of summons. See

praecipe for writ of summons, generally. On April 13, 2009, Plaintiff filed her complaint. See

comp laint , generally. On September 7, 2011, Plaintiff filed a certificate of trial readiness. See

certificate of readiness civil trial listing at pp. 1-2. On May 17, 2012, the Honorable Richard M.

Hughes, III set a trial date for November 27, 2012. See amended trial order at p. 1. The trail did

not take place. In March of 2013, the parties, through their counsel, entered into a binding high-

low arbitration agreement. See response in opposition to Plaintiff's motion to vacate arbitration

award of Defendant at Exhibit "A" at pp. 1-5. On April 1, 2013, following a hearing on the

merits Arbitrator Thomas A. Wallitsch found in favor of Defendant. See award of arbitrator at p.

1. On May 13,2013, Plaintiff substituted herself as counsel and removed her attorney, Edward ,I J. Ciarimboli, from the case. See substitution of attorney at pp. 1-2. On June 3, 2013, Plaintiff

Filing ID: 1855768 2008-16145-02 18 Opinion

Luzerne County Civil Records 31312014 3:07:28 PM Circulated 01/28/2015 12:09 PM

filed a motion to vacate arbitration award. See motion to vacate arbitration award at pp. 1-2. On

October 22, 2013, this Court denied Plaintiff's motion to vacate arbitration award and entered an

Order enforcing the arbitration agreement between the parties as well as the April I, 2013

arbitration decision. See October 22,2013 orders, generally. Thereafter, on November 7,2013,

Plaintiff filed a notice of appeal. See notice to appeal to Superior Court at pp. 1-5. On

December 11,2013, Plaintiff filed her statement of e11'0rs complained of on appeal. See concise

statement of errors complained or on appeal Pa.R.A.P. 1925(b) at pp. 1-2. On December 20,

2013, Defendant filed a response to Plaintiff 1925(b) statement. See response of Defendant to

Plaintiff concise statement of errors complained of on appeal at pp. 1-5.

B. Factual Background.

Plaintiff alleges that Defendant was negligent in failing to properly and safely perform a

laparoscopy and lysis of pelvic adhesions. See complaint at 'f['f[ 14, 41, 45. Trial was set for

November 27, 2012. See amended trial order at p. 1. In November of 2012, Plaintiff was

notified by her then counsel that the case would not proceed to trial on November 27, 2012, but

rather to arbitration. See Plaintiff's June 24, 2013 brief at Declaration of Plaintiff at p. 1. In

March of 2013, the parties, through their counsel, entered into a binding high-low arbitration

agreement. See response in opposition to Plaintiff's motion to vacate arbitration award of

Defendant at Exhibit "A" at pp. 1-5. A common law arbitration was scheduled for March 13,

2013. See May 13, 2013 confirmation at p. 2. Plaintiff participated in the arbitration. See

motion to vacate arbitration award at 'f['f[ 4, 7. On April 1,2013, Arbitrator Wallitsch found in

favor of Defendant. See award of arbitrator at p. I.

2 Circulated 01/28/2015 12:09 PM

II. DISCUSSION

A. Standard.

Under Pennsylvania state law, the grounds for vacating a common-law arbitration award

are set forth in 42 Pa. C.S.A § 7341, which states as follows:

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.

42 Pa.C.S. §7341. "It has been consistently held that any challenge to an arbitration award must

be made in an appeal to the Court of Common Pleas within 30 days of the date of the award."

Snyder v. Cress, 791 A.2d 1198, 1201 (Pa. Super. 2002)(applying 30 day appeal period to

common law arbitration).

B. Arbitration Award.

The arbitration in the instant case is governed by the statute pertaining to common law

arbitration. See May 13,2013 confirmation at p. 2; see also response in opposition to Plaintiff's

motion to vacate arbitration award of Defendant at Exhibit "A" at 'Il3. The award of an arbitrator

in common law 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. Andrew v.

CUNA Brokerage Services, lnc., 976 A.2d 496, 500 (Pa. Super. 2009); see also Aetna Cas. and

Sur. Co. v. Deitrich, 803 F. Supp. 1032, (M.D. Pa. 1992)(holding that common-law arbitration

awards arc not vacated absent clear showing that a party was denied a hearing or that fraud or

other irregularity caused issuance of unjust or unconscionable award). The arbitrators are the

3 Circulated 01/28/2015 12:09 PM

final judges of both law and fact, and an arbitration award is not subject to reversal for a mistake

of either. Andrew, 976 A.2d at 500. Under common law arbitration, the appellant bears the

burden to establish both the underlying irregularity and the resulting inequity by clear, precise,

and indubitable evidence. Id. An "irregularity" which requires reversal of a common-law

arbitration award refers to the process employed in reaching the results of the arbitration, not to

the result itself. Chervenak, Keane & Co., Inc. v. Hotel Rittenhouse Associates, Inc., 477 A.2d

482, 485 (Pa. Super. 1984). Only claims which assert some impropriety in the common law

arbitration process may be the subject to an appeal, to the exclusion of appeals which seek

review of the merits. Snyder, 791 A.2d at 1201.

Instantly, the award of the arbitrator is dated April 1,2013. See award of arbitrator at p.

1. The petition to vacate was initiated on June 3, 2013, which is in excess of two (2) months

after the award. See motion to vacate arbitration award, generally. It is, thus, clear that

Plaintiff's challenge to the award is, by a period of approximately one (1) month, beyond the

appeal period. Snyder, 791 A.2d at 1201.

In addition, this Court finds that the subject of the appeal, with one exception, is not

within the contemplation of § 7341 which allows appeals in cases of fraud, misconduct,

corruption or other irregularity in reaching the result of the arbitration. See motion to vacate

arbitration award at '11'll1-7, 9-11. The gravamen of Plaintiff's appeal is her disagreement with the

strategy employed by her prior counsel in prosecuting and presenting her case and the alleged

failure to properly file certain documents collateral to the arbitration itself. rd. The only

challenge raised by Plaintiff remotely conceming the propriety of the result reached in the

arbitration is the allegation that "she did not have a fair arbitration hearing because [she felt] the

[arbitrator] was unable to be impartial because everybody (my attomey, the defense attomey, and

4 Circulated 01/28/2015 12:09 PM

the [arbitrator]), were on a first name basis." Id. at'll 8. Other than this conclusory allegation

Plaintiff has failed to establish by clear, precise, and indubitable evidence how the arbitrator's

awareness of both Plaintiff and Defendant's attorneys' first names is tantamount to fraud,

misconduct, corruption or other ilTegularity or resulted in an unjust, inequitable or

unconscionable award warranting the relief requested by Plaintiff. Andrew, 976 A.2d at 500.

BY THE COURT:

David W. Lupas, J. Date: March 3, 2014