J-A32027-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
WAYNE MASCIARELLA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellant
v.
THOMAS DEFULVIO
No. 2146 EDA 2016
Appeal from the Order June 16, 2016 in the Court of Common Pleas of Philadelphia County Civil Division at No(s): March Term 2016 3003
BEFORE: DUBOW, J., RANSOM, J., and PLATT, J.*
MEMORANDUM BY RANSOM, J.: FILED MARCH 03, 2017
Appellant, Wayne Masciarella, appeals from the trial court’s order of
June 16, 2016, granting in part his petition to confirm an arbitration award
dated March 18, 2014, but denying his request to expel Appellee Thomas
Defulvio from their joint business premises. We affirm.
Appellant and Appellee are joint members of a Pennsylvania limited
liability company known as www.busesforsale.com (“the Company”). See
Award of Arbitrator, at 1. Pursuant to an arbitration agreement between the
parties, Appellant filed a demand for arbitration with the American
Arbitration Association, alleging that Appellee had for several years engaged
in a breach of his fiduciary duty owed to the company regarding the
____________________________________________
* Retired Senior Judge assigned to the Superior Court. J-A32027-16
purchase and sale of used buses for Appellee’s own benefit. See Award of
Arbitrator, at 1.
On March 18, 2014, the arbitrator entered an award in favor of
Appellant. The award noted Appellee’s hobby of collecting antique buses
prior to the formation of the Company. See Award of Arbitrator, at 1. The
arbitrator credited Appellee’s testimony that he took no profit he did not
share with Appellant, finding no evidence to the contrary. Id. at 1.
Nevertheless, finding a breach of the operating agreement to act with
fiduciary duty towards the Company, the arbitrator ordered Appellee to: (1)
transfer title to buses acquired after January 1, 2007; (2) provide a
complete accounting of all profits or commissions received after January 1,
2007; (3) provide for the distribution of profits from the sale of any
transferred buses; and (4) pay all administrative fees. Id. 2-3. The order
provided that if Appellee failed to comply with the award, Appellant would be
entitled to expel Appellee from the LLC. Id. at 3.
On March 30, 2016, Appellant filed a petition to enforce arbitration
award pursuant to 42 Pa.C.S. § 7342(b). The petition averred that Appellee
had failed to (1) transfer the title of certain buses; (2) failed to appropriately
list inventory; (3) failed to properly account for certain sales; and (4)
refused to sell certain inventory. See Petition to Confirm Arbitration Award,
¶¶ 22-23. Appellant requested that the court confirm the arbitration award,
enter judgment on the award, and enter an order (1) expelling Appellee
from the LLC; (2) terminating Appellee’s employment; (3) directing Appellee
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to return all LLC property and documents in his possession; and (4) ordering
Appellee to sell his LLC interest to Appellant. Id. at ¶ 28.
Appellee filed an answer in opposition to Appellant’s petition, denying
the allegations made therein. See Answer to Petition to Confirm Arbitration
Award, ¶¶ 17-18, 22-28.
On June 16, 2016, the court held a hearing on the petition. Appellant
and Richard Crohan, a salesman for the Company, testified in support of the
petition. According to Appellant, Appellee did not transfer the title to a 1946
CTD Transit bus. See Notes of Testimony (N. T.), 6/16/16, at 10-11.
Appellant and Mr. Crohan testified that this bus was “discovered” in a New
Jersey repair shop. Id. at 12, 61, 79. However, during cross examination,
Appellant admitted he was aware of the 1946 CTD bus and the fact that it
had no title as of the time of arbitration, two years earlier. Id. at 28.
Further, Appellant admitted he had been given titles to a series of buses by
Appellee, but was unaware of what the titles belonged to, as he had never
examined them. Id. at 28-29.
Additionally, during cross-examination, Appellee provided evidence
that the Company’s books accurately reflected money deposited for the sale
of buses acquired after January 1, 2007, and that an accounting had been
performed. Id. at 44-48. Appellee suggested that the 1946 CTD Transit
bus could not be titled, due to its age and poor condition. Id. Further,
Appellee provided evidence that Appellant had known about the existence of
the 1946 CTD Transit bus and its lack of title for two years. Id. at 81-84.
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At the conclusion of the hearing, the court ordered that any titles that
had not been turned over must be turned over and confirmed the arbitration
award. N. T. 6/16/16, at 89-91; see also Order, 6/16/16, at 1. Further,
the court held that Appellant had not produced evidence, either testimonial
or documentary, to demonstrate that Appellee had failed to comply with the
arbitration award. N. T. 6/16/16, at 89-91; see also Order, 6/16/16, at 1.
Accordingly, the court denied Appellant’s petition to expel Appellee from the
business. Id. The court also held that title to the 1946 CTD Transit bus was
not subject to production due to its age and condition. See Order, 6/16/16,
at 1.
Appellant timely appealed. It does not appear, from the record, that
the trial court ordered Appellant to file a statement pursuant to Pa.R.A.P.
1925(b). Nevertheless, it issued an opinion in support of its decision.
On appeal, Appellant raises the following issue for our review:
Whether the [trial court] erred as a matter of law and abused its discretion in denying [Appellant’s] petition to enforce the arbitration award dated March 18, 2014 when in violation of the arbitration award: (a) [Appellee] failed to transfer, or cause to be transferred, to www.busesforsale.com, LLC, all of the buses titled in [Appellee’s] name; and (b) [Appellee] failed to provide [Appellant] an accounting of the proceeds of the sale of a bus transferred by [Appellee] to www.busesforsale.com, LLC pursuant to the arbitration award, and [Appellee] failed to distribute any proceeds from the sale of the bus to [Appellant].
Appellant’s Brief at 4.
Appellant contends that the court erred in refusing to enforce his
arbitration award. According to Appellant, the court improperly modified the
-4- J-A32027-16
arbitration award by finding that there was insufficient evidence to justify
Appellee’s expulsion from the business, and in recognizing that title to the
1946 CTD Transit bus was not subject to production due to its age and
condition. See Appellant’s Brief at 24-30. We disagree.
On the application of a party, made more than thirty days after an
award is made by an arbitrator under 42 Pa.C.S. § 7341, the court shall
enter an order confirming the award and shall enter a judgment or decree in
conformity with the order. See 42 Pa.C.S. §§ 7342(b), 7316. The decree
may be enforced as any other judgment or decree. See 42 Pa.C.S. § 7316.
Appellant does not challenge the arbitrators’ award, but instead, argues that
the trial court erred in refusing to enforce the award. Insofar as the trial
court must interpret the arbitration award, we review that interpretation for
an abuse of discretion or error of law. Hall v. Nationwide Mut. Ins. Co.,
629 A.2d 954, 956 (Pa.
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J-A32027-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
WAYNE MASCIARELLA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellant
v.
THOMAS DEFULVIO
No. 2146 EDA 2016
Appeal from the Order June 16, 2016 in the Court of Common Pleas of Philadelphia County Civil Division at No(s): March Term 2016 3003
BEFORE: DUBOW, J., RANSOM, J., and PLATT, J.*
MEMORANDUM BY RANSOM, J.: FILED MARCH 03, 2017
Appellant, Wayne Masciarella, appeals from the trial court’s order of
June 16, 2016, granting in part his petition to confirm an arbitration award
dated March 18, 2014, but denying his request to expel Appellee Thomas
Defulvio from their joint business premises. We affirm.
Appellant and Appellee are joint members of a Pennsylvania limited
liability company known as www.busesforsale.com (“the Company”). See
Award of Arbitrator, at 1. Pursuant to an arbitration agreement between the
parties, Appellant filed a demand for arbitration with the American
Arbitration Association, alleging that Appellee had for several years engaged
in a breach of his fiduciary duty owed to the company regarding the
____________________________________________
* Retired Senior Judge assigned to the Superior Court. J-A32027-16
purchase and sale of used buses for Appellee’s own benefit. See Award of
Arbitrator, at 1.
On March 18, 2014, the arbitrator entered an award in favor of
Appellant. The award noted Appellee’s hobby of collecting antique buses
prior to the formation of the Company. See Award of Arbitrator, at 1. The
arbitrator credited Appellee’s testimony that he took no profit he did not
share with Appellant, finding no evidence to the contrary. Id. at 1.
Nevertheless, finding a breach of the operating agreement to act with
fiduciary duty towards the Company, the arbitrator ordered Appellee to: (1)
transfer title to buses acquired after January 1, 2007; (2) provide a
complete accounting of all profits or commissions received after January 1,
2007; (3) provide for the distribution of profits from the sale of any
transferred buses; and (4) pay all administrative fees. Id. 2-3. The order
provided that if Appellee failed to comply with the award, Appellant would be
entitled to expel Appellee from the LLC. Id. at 3.
On March 30, 2016, Appellant filed a petition to enforce arbitration
award pursuant to 42 Pa.C.S. § 7342(b). The petition averred that Appellee
had failed to (1) transfer the title of certain buses; (2) failed to appropriately
list inventory; (3) failed to properly account for certain sales; and (4)
refused to sell certain inventory. See Petition to Confirm Arbitration Award,
¶¶ 22-23. Appellant requested that the court confirm the arbitration award,
enter judgment on the award, and enter an order (1) expelling Appellee
from the LLC; (2) terminating Appellee’s employment; (3) directing Appellee
-2- J-A32027-16
to return all LLC property and documents in his possession; and (4) ordering
Appellee to sell his LLC interest to Appellant. Id. at ¶ 28.
Appellee filed an answer in opposition to Appellant’s petition, denying
the allegations made therein. See Answer to Petition to Confirm Arbitration
Award, ¶¶ 17-18, 22-28.
On June 16, 2016, the court held a hearing on the petition. Appellant
and Richard Crohan, a salesman for the Company, testified in support of the
petition. According to Appellant, Appellee did not transfer the title to a 1946
CTD Transit bus. See Notes of Testimony (N. T.), 6/16/16, at 10-11.
Appellant and Mr. Crohan testified that this bus was “discovered” in a New
Jersey repair shop. Id. at 12, 61, 79. However, during cross examination,
Appellant admitted he was aware of the 1946 CTD bus and the fact that it
had no title as of the time of arbitration, two years earlier. Id. at 28.
Further, Appellant admitted he had been given titles to a series of buses by
Appellee, but was unaware of what the titles belonged to, as he had never
examined them. Id. at 28-29.
Additionally, during cross-examination, Appellee provided evidence
that the Company’s books accurately reflected money deposited for the sale
of buses acquired after January 1, 2007, and that an accounting had been
performed. Id. at 44-48. Appellee suggested that the 1946 CTD Transit
bus could not be titled, due to its age and poor condition. Id. Further,
Appellee provided evidence that Appellant had known about the existence of
the 1946 CTD Transit bus and its lack of title for two years. Id. at 81-84.
-3- J-A32027-16
At the conclusion of the hearing, the court ordered that any titles that
had not been turned over must be turned over and confirmed the arbitration
award. N. T. 6/16/16, at 89-91; see also Order, 6/16/16, at 1. Further,
the court held that Appellant had not produced evidence, either testimonial
or documentary, to demonstrate that Appellee had failed to comply with the
arbitration award. N. T. 6/16/16, at 89-91; see also Order, 6/16/16, at 1.
Accordingly, the court denied Appellant’s petition to expel Appellee from the
business. Id. The court also held that title to the 1946 CTD Transit bus was
not subject to production due to its age and condition. See Order, 6/16/16,
at 1.
Appellant timely appealed. It does not appear, from the record, that
the trial court ordered Appellant to file a statement pursuant to Pa.R.A.P.
1925(b). Nevertheless, it issued an opinion in support of its decision.
On appeal, Appellant raises the following issue for our review:
Whether the [trial court] erred as a matter of law and abused its discretion in denying [Appellant’s] petition to enforce the arbitration award dated March 18, 2014 when in violation of the arbitration award: (a) [Appellee] failed to transfer, or cause to be transferred, to www.busesforsale.com, LLC, all of the buses titled in [Appellee’s] name; and (b) [Appellee] failed to provide [Appellant] an accounting of the proceeds of the sale of a bus transferred by [Appellee] to www.busesforsale.com, LLC pursuant to the arbitration award, and [Appellee] failed to distribute any proceeds from the sale of the bus to [Appellant].
Appellant’s Brief at 4.
Appellant contends that the court erred in refusing to enforce his
arbitration award. According to Appellant, the court improperly modified the
-4- J-A32027-16
arbitration award by finding that there was insufficient evidence to justify
Appellee’s expulsion from the business, and in recognizing that title to the
1946 CTD Transit bus was not subject to production due to its age and
condition. See Appellant’s Brief at 24-30. We disagree.
On the application of a party, made more than thirty days after an
award is made by an arbitrator under 42 Pa.C.S. § 7341, the court shall
enter an order confirming the award and shall enter a judgment or decree in
conformity with the order. See 42 Pa.C.S. §§ 7342(b), 7316. The decree
may be enforced as any other judgment or decree. See 42 Pa.C.S. § 7316.
Appellant does not challenge the arbitrators’ award, but instead, argues that
the trial court erred in refusing to enforce the award. Insofar as the trial
court must interpret the arbitration award, we review that interpretation for
an abuse of discretion or error of law. Hall v. Nationwide Mut. Ins. Co.,
629 A.2d 954, 956 (Pa. Super. 1993) (finding trial court’s interpretation of
arbitrators’ award to be reasonable and not an abuse of discretion).
In the instant case, the arbitrator ordered Appellee to transfer bus
titles, provide a complete accounting of profits and commissions, provide for
the distribution of profits, and to bear administrative fees. Additionally, if
Appellee failed to comply with the award, Appellant would be entitled to
expel Appellee from the LLC. The trial court confirmed the award and
possessed the ability to interpret the award to determine if enforcement was
necessary.
-5- J-A32027-16
Accordingly, the court convened a hearing to take evidence on that
issue. With regard to the trial court’s factual findings, we will not disturb
those findings on appeal absent an abuse of discretion or error of law. See
Ecksel v. Orleans Const. Co., 519 A.2d 1021, 1028 (Pa. Super. 1987). A
trial court’s findings with regard to the credibility and weight of the evidence
will stand unless an Appellant can show that the determination was
“manifestly erroneous, arbitrary and capricious or flagrantly contrary to the
evidence.” Id.
The trial court concluded, based on the testimony offered, that
Appellant had not provided any evidence that Appellee had violated the
arbitration award. Instead, the evidence showed that Appellee had complied
with the award: he had performed an accounting of his sales, and Appellant
had been given the titles to the buses subject to the arbitration award with
the exception of the 1946 CTD Transit bus. With regard to that title, the
trial court held, based upon the bus’s age and condition, no one could have
had the title, and accordingly Appellee was not required to produce it.
We discern no abuse of discretion in the trial court’s conclusion that
Appellant did not provide sufficient evidence to justify the expulsion of
Appellee from the business. Ecksel, 519 A.2d at 1028.
Order affirmed.
-6- J-A32027-16
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 3/3/2017
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