Sherman v. Marcus & Millichap Real Estate Investment Services, Inc.

28 Pa. D. & C.5th 365
CourtPennsylvania Court of Common Pleas, Philadelphia County
DecidedFebruary 13, 2013
DocketNo. 4613, No. 2243 EDA 2012
StatusPublished

This text of 28 Pa. D. & C.5th 365 (Sherman v. Marcus & Millichap Real Estate Investment Services, Inc.) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Philadelphia County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Sherman v. Marcus & Millichap Real Estate Investment Services, Inc., 28 Pa. D. & C.5th 365 (Pa. Super. Ct. 2013).

Opinion

PANEPINTO, J.

This appeal stems from an arbitration award that was entered by the arbitration panel on October 27, 2009 after three (3) days of proceedings. The panel issued an award for Marcus and Millichap Real Estate Investment Services (“Millichap”) [367]*367in the amount of $336,875.00, plus post-award interest and, upon further application, attorneys’ fees and costs pursuant to the Exclusive Representation Agreement (“representation agreement”) dated October 22, 2004. This action began upon the filing of a petition to vacate or modify award of arbitration filed by Mark E. Sherman, et al. (“Sherman”).

On December 5, 2009, an affidavit of service of the petition to vacate or modify award of arbitration upon Millichap was filed. Sherman then filed a motion for sanctions on February 26, 2010. The response date was March, 18, 2010.

The case was reassigned to Judge Paul Panepinto on May 17, 2010 and a rule was issued by the court the same day. The rule, after considering the motion for Sanctions, called upon Millichap to show cause why the requested relief should not be granted. The rule returnable was set for June 16, 2010. The same day, May 17th, a rule was also issued by the court concerning the petition to vacate or modify award of arbitration. The rule called upon Millichap to, again, show cause why the relief should not be granted.

On June 9,2010, the motion hearing for the motion for sanctions was rescheduled to August 11, 2010. The same day, the motion hearing for the petition to bacate award of arbitration was also rescheduled to be heard on August 11,2010.

A full hearing on the petition to vacate or modify [368]*368award of arbitration and the cross petition to confirm arbitration award was held on August 11,2010 and attended by both parties. After the hearing on the underlying issues, an order was entered on September 22,2010 and docketed on September 28, 2010. The order stated that the Petition filed by Sherman to vacate or modify award of arbitration was denied and Millichap’s petition to confirm arbitration award was, in turn, granted. The judgment was entered against Sherman for the specified amount of $339,875.00, plus interest at the annual simple rate of 6% from October 26, 2009, until the award amount is paid. It was further ordered that attorneys’ fees and costs will be awarded in an amount to be later determined by the arbitration panel.

An appeal was made to the Superior Court on behalf of Sherman by his counsel on September 30, 2010 to contest the decision dated September 22, 2010 and docketed September 28, 2010. On July 27, 2012, this appeal was quashed as interlocutory as this court’s September 28, 2010 order did not dispose of all claims in that it remanded the matter to the arbitration panel to set attorneys’ fees. See July 12, 2011 Superior Court opinion.

ALLEGATIONS OF ERROR [renewed]

1. An irregularity occurred in the entry of the aforesaid Arbitration Award which caused the rendition of an unjust, inequitable or unconscionable Arbitration Award, [sic]
2. The Arbitration Award was entered by two of the three arbitrators, [sic]
[369]*3693. The Arbitration Award was not entered after due deliberations between all three arbitrators, [sic]
4. The Arbitration Award indicates that it was unanimous, however, as stated above, was entered into by only two of the three arbitrators, [sic]
5. The Arbitration Award awarded pre-arbitration interest, contrary to law. [sic]
6. The Arbitration Award did not apportion the amount of the award between the petitioners, Mark E. Sherman, 4504 Pine Street, Inc. and 4600 Spruce Street, Inc. [sic]
7. The entire arbitration award was entered against Petitioner, Mark E. Sherman, only, [sic]
8. Respondent filed an answer to petitioner’s petition raising disputed issues of material fact, however, the Lower court refused to issue a Rule to resolve the disputed issues of material fact in violation of Pa. R.C.P. 206.6 and Pa. R.C.P. 206.7 (c). [sic]
[in addition]
A. All those issues raised above pertaining to the Award of October 27,2009 and the order of September 28, 2010. [sic]
B. The computation of damages in the Award in October 1, 2011 and the order of June 29, 2012 are at variance with the previous award of October 27, 2009 and order of September 28, 2010. [sic]
[370]*370C. Respondent filed an answer to petitioner’s petition raising disputed issues of material fact, however, the Lower court refused to issue a rule to resolve the disputed issues of material fact in violation of Pa. R.C.P. 206.6 and Pa. R.C.P. 206.7 (c). [sic]

DISCUSSION

As for the first eight (8) allegations of error, this court rests on its prior decision that the arbitration award was properly entered by the arbitrators and that no clear, precise and convincing evidence of fraud or irregularity was shown by Sherman to cause this court to vacate or modify the arbitration award.

Pennsylvania law directs that common law arbitration awards must be confirmed absent “fraud, misconduct, corruption, or other irregularities” that resulted in an “unjust, inequitable or unconscionable” award. See 42 Pa. C.S. § 7341; Harwitz v. Selas Corp. of Am., 178 A.2d 617, 619 (Pa. 1962). Claims of “other irregularities” must be proven by clear, precise and convincing evidence. See Gargano v. Terminix Int’l Co. L.P., 784 A.2d 188, 194 (Pa. Super. 2001). Even mistakes of law and fact cannot serve as a basis to vacate an arbitration award. Parking Unlimited, Inc. v. Monsour Med. Found., 445 A.2d 758, 761 (Pa. Super. 1982).

Sherman appointed Richard A. Guttman, Esq. as his party-appointed arbitrator. Millichap appointed Andrew Gowa, Esq. as their party-appointed arbitrator. The party-appointed arbitrators then chose Thomas B. Rutter, Esq. [371]*371as the neutral, third arbitrator. Sherman’s party-appointed arbitrator acknowledged in a letter he wrote on October 28, 2009 to the other arbitrators, which was provided by Millichap, that the panel had reached a unanimous decision after deliberation.

Sherman, in his petition and at the hearing held on August 11, 2010, stated affirmatively that they “do not contend that there was any ‘fraud, misconduct, [or] corruption’ in the process of arbitration.” This court’s review of an award of arbitration is “extremely narrow” and Sherman bore the burden of showing the “underlying irregularity and the resulting inequity.” Chervenak, Keane & Co. Inc. v. Hotel Rittenhouse Assocs., Inc., 477 A.2d 482, 485 (Pa. Super. 1984); See also Brennan v. General Accident Fire and Life Assur. Corp., Ltd., 574 A.2d 580, 583 (Pa.

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Related

Chervenak, Keane & Co. v. Hotel Rittenhouse Associates, Inc.
477 A.2d 482 (Supreme Court of Pennsylvania, 1984)
Balent v. City of Wilkes-Barre
669 A.2d 309 (Supreme Court of Pennsylvania, 1995)
Parking Unlimited, Inc. v. Monsour Medical Foundation
445 A.2d 758 (Superior Court of Pennsylvania, 1982)
Harwitz v. Selas Corp. of America
178 A.2d 617 (Supreme Court of Pennsylvania, 1962)
Brennan v. General Accident Fire & Life Assurance Corp.
574 A.2d 580 (Supreme Court of Pennsylvania, 1990)
Gargano v. Terminix International Co.
784 A.2d 188 (Superior Court of Pennsylvania, 2001)
Daset Mining Corp. v. Industrial Fuels Corp.
473 A.2d 584 (Supreme Court of Pennsylvania, 1984)
Kuzmen v. Kamien Et Ux.
12 A.2d 471 (Superior Court of Pennsylvania, 1939)

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Bluebook (online)
28 Pa. D. & C.5th 365, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sherman-v-marcus-millichap-real-estate-investment-services-inc-pactcomplphilad-2013.