Silberman, M. v. Loguidice v. M.D.

• Court: Superior Court of Pennsylvania
• Decided: February 13, 2015
• Docket: 921 EDA 2014
• Status: Unpublished

Opinion

J-A33020-14

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

MARY FRANCES F. SILBERMAN AND : IN THE SUPERIOR COURT OF ROBERT M. SILBERMAN, H/W : PENNSYLVANIA : v. : : VITO LOGUIDICE, M.D., CHRISTOPHER : R. FERRANTE, M.D., ORTHOPEDIC : ASSOCIATES OF THE GREATER LEHIGH : VALLEY AND NUVASIVE, INC. : : APPEAL OF: ORTHOPEDIC ASSOCIATES : OF THE GREATER LEHIGH VALLEY, P.A. : AND AGGRIEVED PARTIES, ATTORNEY : DANIEL J. FERHAT AND WHITE AND : WILLIAMS, LLP : No. 921 EDA 2014

Appeal from the Judgment Entered March 19, 2014, in the Court of Common Pleas of Northampton County, Civil Division, at No(s): C-48-CV-2009-9456

BEFORE: LAZARUS, WECHT, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.: FILED FEBRUARY 13, 2015

Daniel J. Ferhat, Esquire (Attorney Ferhat) and White and Williams,

LLP (collectively, Appellants) appeal from the judgment entered March 19,

2014. Specifically, Appellants challenge the trial court order imposing

sanctions upon Attorney Ferhat in the amount of $34,646.40. We affirm.

The certified record reveals the following facts. Appellants represented

defendant Vito Loguidice, M.D., in the underlying medical malpractice action

filed by Mary Frances F. and Robert Silberman (collectively, Plaintiffs), in

which Plaintiffs alleged that Dr. Loguidice caused injury to Mrs. Silberman

during the course of orthopedic surgery. The matter was scheduled for a

*Retired Senior Judge assigned to the Superior Court. J-A33020-14

jury trial on November 18, 2013. On the day of trial, prior to jury selection,

the trial court met with the parties to discuss the possibility of settlement.

At Attorney Ferhat’s suggestion, the parties agreed to submit the matter to

binding arbitration with a high-low agreement. After lengthy negotiations,

the terms of the agreement to arbitrate were set forth on the record.

Following the conference, Attorney Ferhat raised the issue of exclusion

of delay damages. While the parties did not agree that delay damages were

excludable, after some additional discussions, the parties placed an

agreement on the record that, if delay damages were awarded, that amount,

when added to the arbitrator’s initial award, could not exceed the agreed

upon high limit.

On November 18, 2013, upon learning that the agreed upon arbitrator,

JAMS, was available that week, counsel for Plaintiffs filed the necessary

paperwork and payments to schedule arbitration. The following day,

Attorney Ferhat forwarded to Plaintiffs’ counsel a document he had drafted

which purported to be a written arbitration agreement. That document

contained a number of additional terms to which the parties had not agreed

on the record.1 Accordingly, Plaintiffs, at the advice of counsel, refused to

sign the document on the basis that they would not renegotiate the

1 This included a provision to exclude delay damages and a provision that Plaintiffs would look only to Dr. Loguidice’s insurer for payment of any award.

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agreement set forth on the record on November 18, 2013. In response,

Attorney Ferhat refused to sign the JAMS arbitration agreement or submit

defendants’ fee, claiming that there had not been a meeting of the minds

and, thus, no agreement to arbitrate.

Attorney Ferhat reiterated this position during a telephone conference

with Plaintiffs’ counsel and the trial court on November 20, 2013. During

that conference, in addition to minor logistical and housekeeping matters,

Attorney Ferhat insisted that he had not agreed that delay damages could be

recovered in arbitration, and claimed that arbitration could not proceed

unless delay damages were excluded. Later that day, Attorney Ferhat

informed Plaintiffs’ counsel and JAMS that he was cancelling the arbitration.

On December 11, 2013, counsel for Plaintiffs filed a motion seeking

counsel fees, costs and sanctions against Appellants. On that date, following

the filing of Plaintiffs’ motion, Attorney Ferhat informed Plaintiffs’ counsel

stating that he “would like to proceed with arbitration, with delay damages

as a possible element of recovery.” Trial Court Opinion, 1/22/2014, at 11.

On January 22, 2014, following a hearing on Plaintiffs’ motion, the trial

court determined that Attorney Ferhat’s conduct in delaying, and ultimately

refusing, arbitration was obdurate, vexatious, and dilatory, and entered an

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order directing Attorney Ferhat to pay sanctions in the amount of

$34,646.40 to Plaintiffs’ counsel.2

On March 19, 2014, counsel for Plaintiffs filed a praecipe to settle,

discontinue, and end the underlying medical malpractice case.

Following the entry of judgment in the underlying matter, Attorney

Ferhat timely filed a notice of appeal. He presents the following questions for

our review.

1. Did the trial court commit an error of law in awarding sanctions against Attorney Ferhat for refusing to participate in a private arbitration where: (a) his opposing counsel would not agree to sign a general release, which the trial court erroneously determined was only a “housekeeping” matter, as a condition of the arbitration agreement; (b) the trial court recognized and stated that the issue of confidentiality had not been addressed or agreed upon by the parties; and (c) the trial court erroneously concluded that delay damages were awardable as a matter of right in private arbitrations?

2. Did the trial court commit an error of law in awarding sanctions against Attorney Ferhat for refusing to participate in a private arbitration without a written arbitration agreement when: (a) the trial court’s finding of dilatory, obdurate, and vexatious behavior was unsupported in fact or law; (b) Defendants agreed to arbitrate the case before the time period to complete the arbitration expired; and (c) the agreed-upon arbitrator — JAMS — would not even agree to arbitrate the case without either an executed arbitration agreement between the parties, which [plaintiffs’] counsel would not sign, or a court order appointing JAMS as an arbitrator, which the trial court did not issue?

Appellants’ Brief at 3 (trial court answers omitted).

2 Attorney Ferhat filed a timely motion for reconsideration, which was denied by the trial court on April 7, 2014.

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Following our review of the certified record, the briefs for the parties,

and the relevant law, we conclude that the opinions of the Honorable Paula

A. Roscoli thoroughly address and correctly dispose of Appellants’ issues and

supporting arguments. Accordingly, we adopt the trial court’s opinions of

January 22, 2014 and June 4, 2014 as our own, and affirm the court’s

disposition of Appellants’ issues on the basis of those opinions. The parties

shall attach copies of the trial court’s January 22, 2014 and June 4, 2014

opinions to this memorandum in the event of further proceedings.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/13/2015

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IN THE,COURT OF COMMON PLEAS OF NORTHAMPTON COUNTY ,-"" ,," """"'C"()M~fONW'EALfH'(lF' p1~NN S'YCV'ANiA'-'-' " CIVIl DIVISION

MARY FRANCES SILEE:RMAN and ROEERTM, SILEERMAN, ,. J

Plaintiffs, , ~

v. :~,.

VITO l.OGUIDICE, M.D. and ,• '

ORTHOPA'EOic ASSOCIATES ,OF rh E; I ,THE GREATER LfHIGH VALLElY,' CJ . Defendants. .

OPhNION OF THE COU{tT

This matter is b¢fore the . -Court on Plaintiffs' Motion " 'to Assess Counsel , ' Fees, ,Costs, and· Sanction,s, which,motion was filed as a result of defen;:;e

coun$el 1s .failure to proceed to- bfnding arbitration in this' matter as agreed by

the p'arties . . on November . 18, 2013. ..' Following a hearing ..... and argument . on '. the motlo~l. we he'reby, make the, followlng 1:

I. Findings of Fact

1. 'This case is a medical malpractice case i"n 'whlch Plaintiff' M~ry

F'rances Silbe rman d~ Ims that Defe nda n~ Dr. Vito' Loguidice caused injury to her

during the course of ortrlOpaedlc surgery.

:I Due to oversight, flO OIW formally moved any of the exhibits into eVldance nt the conclusJon of the hearIng. This was brought to the a~tentJon of the Court by correspondence from Attorney Miller of JanuarY 21 2014 1 In Whl(;h he asked that the Court accept the exhibits Into evidence, Attorney Farhat was ,contacted seeking hIs position and chose not tu ' I·espond. "The admlsslon or exclusion of additional evidence after the evidence Is c!ose'd Is a matter within·the dIscretion of the trleJl court[,]" Silver v, Miller, 201 A.2d 308, 30g (Pa, 5Upp.r. 1964). Given that

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2. proceed to a jury trial in this mattei' on November 18, 2013,

3; Likewise; a ·panel.of jurors was avajlabJe. to hear the case, and the

Court was prepared to conduct the trial commenc!0g ?aid date,

4, Prior to beQin0ing voir dire, the Court held a conference with . .counsel . In ord~r. to determine jf there. was any possibility for settlement. 5, ' At that time, Daniel J. Ferhat, Esq., cou!1sel for Defe,ndants, stated that ther.e w~s .~o pOSSibility of settlement, but ·that h'e wished' to explore the . . possibility. of submitting the matter' to' binding arbitration With a hIgh-low

. ~g reemf}nt2 , . . . . 6. 'Attorney Ferhat had previously made this suggestion in a phone call

to PlaintIffs' counsel'on November 13·,.i013,

7. : Plaintiffs were 'initlally' opposed to arbItration, 'but after discussion . . .. with counsel on November 18', 2013, they decided that they would agr.ee . to

proceed In said manner, with' an agreed-upon hlgh"lo~. .

.' . 8. : Couns~1 spent a number of hOurs, with the assistance of the Court,

determining agreeable high and low dollar ·flgures to apply to the arbitration, as

we!! ~s 'who the arbitrator would be,

.9. The high and low dallal' figures were ultimately agreed upon by all

partIes and all counsel,as were the names of two potentia! arbitrators; 'Phil

Hof, Esq. and ~erry Roscoe, Esq.

2 As' the high and low dollar amounts' of the agl'c9m en~ are confidential, the Court mal

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10. The only additional terms discussed durlng the conference were the ..... '-;-.... - ...... - ........ -"'--""'--.". P"_. '" ............. __.......... - ••• __ . __ .... ".... ,...... __ ...... .. _......... .... __ ............ _.•... ".' .................................... ___ .............. _ ...... __ ......... __ . ,,,,,, ___.,,.,,,,,, __ ,,,,.,, ,........... .

timing of the arbitration and 'the method of presentation of expert witnesses .

. 11. Following the conference, cOllnsol and the Court set forth on. the

record the terms of the agreement,

. 12. The terms ·of the agreement were: thaf the parties would proceed

t~ bindj.ng arb!t(ation with . the h!gh~low agreement; ~that either Phil Hof; ·Esq. or ' . .

~erry R·oscoe, Esq. ··wouJd conduct the \arbitratloni that w.hich.ever·of the two . . sqggested arbitratorS. was available first would conduct the arbitrationi that the·

arbitrati~n would'take pla~e that week If either arbitrq,torwas,available to do so, given t~at all parties had cleared th·eir, schedules for the Week' and given th.at . .. , '. Pia IntifFs . had travelled from Georg la to attend. the trial; that In the "event that . the·.arbitration could not be'conducted that week, that it would· take place within'

.slxty.(60) days; and that no ~x~erts would be brought in to testify Jive. for either,

party, ' but . rat~e'r their' reports" would be subrr1itted into evIdence for .' l '

consideration by the arbitrator', (N.T. 11/18/13/ . pp.2. 5), n

:l3.. . After this agreement was set fO/th .on the record, Attorney Ferhat

'. attempte'd toin?ert additional terms Into the agreem~nt, to whJch· Plaintiffs and. ~

their.counsel were not' agreeahle.. ,(N.T 11/:18/13; pp,5-10).

14. One such a.dditional term raised by. Attorney Ferhat· was the

e·xclllsion of any possible recovery of delay damages. (N.T. 11/18/13/ p.8).

15. Plaintiffs and their counsel did not agree. to such a term, and a

. thorough di5cusslon took plac~ on the. recor9 among couns~1 ~md the Court

regarding same. (N.T. 11/18/13, pp.8-10). Page 3 of 11

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16 . At the,cQncJusion of that discussion, It was dear that the parties did .. .•. _ .•.. _ . .•. .•. __ .' _. ., .•.. _ •...• .. __ ••• " .• ___ •. .• _._. . _. '" ••.. .,. __ ...... "." ... _ •. ,_ ."' __ ."." ......... "'-' 0.'._ •• ". _, ..... __ •.. ..•...•.. , ..• ____ . -- .. - ... -_ .... "." .. __ ... -_ .... "'-'-'-" - . _.. . ..................... - - ...... _ .... _•. ""7-' ..... ,•• _." •. - ..... -, .. ,..... . -

not agree that delay damages wel'ean excfuda'ble measure of damages. It was

agreed, however, that any delay damages thLl.t m('jy be awarded could not,

when added to the' arbitrator's inItial award, exceed the high agreed to by the

parties. (N.T. 11/18/13', p.l0).

'17. The proceedings were concluded and the jury pan'e) dlsm!5ised/ with

. the Court and. nil , parties 'being of the. ,understanding . that the matter woulq be . ' , ' , '

arb(trated 'as agreed, (N .T. P/i8/13j p.tO). ' "

, lB. , Following same, the Court' contacted 'the agreed-upo~, arbitrators

and determined that Jerry Roscoe, ,t:sq. wa£ available to hear the case that

,week, OF], November ,21, 2013and/br' 'November '22,' 2013. The' parties, and

counsel, ,thel:e'aftel:' left the (;ourthouse with 'the understandIng, '. that. the

arbitration would take piace on one:or both of those dates,

19. Had Attorney Ferhat not agreed that' th'e arbitrator 'COUld award

delay dpmnges, If appropriate, 'in an amount su~h that the total award wo,uld "

,not' exceed the agreed-upon high~ Plaintiffs wbllid' have, p'urs~ed a 'jUlY ,trial on' ':

November 18, 2013,

'. ' " ' 20, On November 18; 2013 / Attorney Todd Miller, 'counsel for PIClintlffs,

~xecute.d the, necessary paperwork provided by JAMS, th'e entity by which the

Mr. Roscoe is employed, and sent same, along with Plaintiffs' share of the initIal , ,

non~rerundab!e fee deposit, In the amount of four' hundred dollars ($400.00),

via FedEx Priority Overnight, at a cost of twenty dollars and fifty cents ($20.50),

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Miller. and Attorn'ey Steven Bergstein, counsel for. P!a.1ntlffs, a document he had,

~raftcd purporting to' be a written arbitration agreement,

22" Contained in that document' were several terms which ,had neither

been discussed nor agreed upon by the parties, includIng a provision excluding . '

delay, damages and' a pro.vision that Plaintiffs would look only to ,Defendants'

,insurer for payment of any award. '

23;,', Attorney~ MiHE!r and Be:gstein indicated th~t, the'y would . not. agree, , • ,<

nor would they" 'ad,vise their clients to agree, to sign the, document provided by'

Attorney "Ferhat, on the grounds that an agreement to arbitrate had already , , been reached In the courtroom, and that they, woufd not now renegotiate that

agr~ement. '

,24', Be~ause PlaintIffs' counsel declined to' sign, the' docurnent; Attorney

Ferhat refused to, sign the' JAMS agreement 'or re'mlt Defendants' share of the

fee deposit,

" -25,' Att?rney Ferhat took the,' posltio'", q?spite a' clear record to the

contrary, that thel'e had 'not been a meeting, of the minds on Nov'ember 18, .

2013 and that there was no agreement"to arbitrate, '

.. 26. ' Attorney Miller, by correspondence of, November' 19, 2013,

requested that Attorney Ferhat execute the JAMS ag,reement and submit the fee

deposit so that the arbitration could proceed as pl~nned.

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£1/9 'd S~tO 'Ol~

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27. -- .... __ .. __ .,.-.-- ._--" ..... "'---"'" ............. __ ....'- "....... .-.....'---_.«On November .. ", .......... 20, _--_._ .... _- .. __.................... 2013, -.-...,............. _....."..,..the Court held__ ..... ,... ,....................................... a -..telephone conference _-_ . - ........................... with,_ ............................................................ -........................................

Attorneys . . Miller and Ferhat In order to assist the parties ih movin'g forWard wIth ' .

the arbitration.

28. During that conference, Attorney Ferhat insisted th~t a numb'er of

material term,s had not been,discu~sEld in coming to the arbItration agreement

,that had been p'laced' on the record,that. there was 'accordingly no agreement, ,

a nd ~hat he could :not proceed to arb!tratlon.

29.,' The issues raised by Attorney Fer-hat 'in' that teleplione, conference - . , ,'. '. .'

Included .q number'of . logistical and housekeeping, ,'. rssu'es that .were not material '

. terms, such as th,e location ,of the arbltr;;ltlon, a general release, and, flsts of

w{tness~s~ All such is~ues were discussed 'and easily agr~ed upon between

Attorneys Miller and Ferhi:jt during the telephone cO,nference"

30. in ~ddition' to these minor issues, Attorney Ferh'at,'again r~ised the Issue', of delay' damages,and insisted that he had 'neyer agreed, ,nor 'had he

intended . . to agree, that delay damages- -could be r,et.:overed' . in the'. a'rbitration,

,despite a 'clear 'reco('d to 'the contrary. Attorney Ferhat insisted that the , "

arb'ltratlon .co{,)fd not pro'ceed, if delay- ,d am age;; Were nona ken off the t;;lble. '

31. ,Later' 01'1 November 20,,2013, Attorney Ferhat Informed Attorney

Bergstein and JAMS that he was cancelling the arbitratIon. '

32. 'Plaintiffs spent five hundred forty seven dollars and sixty cents

($547.60) Jor airFare to attend the Nove'mber trIal.

33., PlaIntiffs spent one thousand two hundred twenty four dollars and

thirty cents ($1,224.30) for lodgfng to attend the November trial. Page 6 of 11

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. , ,. ' .. ,',. ,," '-'''.34 """"" PJ~1.r-Jtiffs,sp.e nLhyo.... hu ndre.cLni flc;l"Q 9JJ9.f.§.<:!09: f!f!;Y-,G.~.t'Lt,?Jt?Q9. ?Q1.:.,m"" . . "_"" ....,. , for a rental c.;:tr and gas to attend the November trial,

35. Attorney MiJler spent three· hundred sIxty dollars ($360,00) on

subpoenas for witnesses to testify at the November trial. ..

·36, Attorney Miller spent seven hundred dollars ($700.0,0) .on video

services for the presentation of 'evid ence at the Noyen')ber tra 11. .

37, As'~ result· of .J\ttorney' Ferh.;:tt's deciSion to agree, to arbitration. in

lieu of a t~ial. and then to c~ncol the a!bft~ation in breacl1 ..of.the' p'.artles' agreement, 'Plaintiffs wiJl be required to ~xpend. additional, sums 'of money' to returl)·to'the L~highVaJley for disposition of this c'ase.

,38, Similarly, Attorney M!lIer' will have ,to pay'the above ,sums a second

time In order to d1spose o'f this case,3

39. 'Attbrney Miller spent 160 hours from November 2, 2913 througll

November 17, 2013 preparlrig for trial,

'10. , Attorney Be-:gst~ln spent ~9.3 hours from. October, 31 1 201-3

through Novembet 17, 2013 preparing for.trla]·, ....

:. 41.', Attorney Miller spent 21.5 hours fi'OrrJ. November 19 7 2013 thr·ough

JanuarY.2} 2014 on work brought about by Attorney Ferhat's refusal to proceed

wIth the arbitration,

, ~ Attorney MIller also, tl;!Otlfisd at the hearing on the present motion that he paid (l non- refundable fee of ten thousand dollars ($10,000) to secure the presence of a keY' expert " witness at trial, which he would have to pay a second tIme for a future trial. However, given the parties' agreement to submit. only expert reports to the ,arbitrator, as well as the. Court's . findIng, below, that this case should proceed to arbitration, we Find that no expense for thl;, witnes5 W?JS occasioned by Attorney Ferhat's conduct, and accordingly we conclude that no portion of the witness fee 15 ~ r0coverable elemr.mt of damages,

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. . _.....~.2..~ ... :.8.~~~.!!~Y..§ ~.r.g ~~~}~ .. § p~~t..' f).s.~? ~9_U.~ .. r~?~.:~9.'1.~.fT!.~_~.r. .. .1..~I.., ?~.1.3. .... _m... ....... ... ..... ...... ............. through Jan uary.2, 2CJ14 on work brought about by Attorney Ferhat's.refusal. to

proceed with the arbitration.

43. Attorneys MIller and 8ergstein' antjcip~te spending, at 'Ieast half of

theiroriginaJ trial preparation hours, noted abQye, in ord'er to come back up to .' . speed to dispose of this 'case,

44, ..8oth Att.or!1ey Miller and Attorney 8ergsteinhave an hourly rate of

thr~e, hundred fifty dollars ($350.00). ....

45. The within petition waS filed on December 5, 2013.

46. On December ii, 2013, following 'the filing of the Motion to:Assess

. Counsel Fees, Cos'ts, and Sanctions; . and fur.·the 'first time . . since. the· agreement . '. -,

. was rea~hed, Attorney .Ferhat ~o~responded .with 'counsel, staU'ng {hat'he wquld Ilke to' proceed with the arbitration, with delay dama!;les as a .possible element

of recovery,

47. There is no eVidence to suggest that Attorney Ferhat's conduct r;lf~~r -\' November 18" 2013 was ~sanctioned by Defendants, Vito' Loguidice! M, D, 'or

v.,ras aW<;1re .of tile position or~ctlon5 pf·Attorney Ferhat In attempting ,to'

re negotj~ts! the arbitration ag reement, 4

1. During the COUrse of·the hearing on the presemt motion; PI(ljntlffs' counsel In'dlcated tf)

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................... _... _. 4~~ ..... t:J..~i~.h_~r..y!~.

Greater Lehigh Valley appeared at the 'hear.ing on this mot.lon ..

49. Attorney Ferhat offered no testimony at the hearing on this motion!

and therefore the testImony of Attorneys .Miller and' Bergstein was

uncontroverted •.

II. Conclusions of Law, , ' . 1. ':'TeGhnic~1 ,words are .not,requlred to make a binding reference [to

arbitration]; and .tlle form of ~ubmissio'nis tiot important, if it clearlY appears'· . ,

that ~he Intent was to submIt differences to arbitration, and to abide by the . . award:" Somerset BOroUg/l v: Ott, ·56 A. 1079 (PEL 1904).

, 2. All' m~terlal terms of the' .partles' arbitra'tion .agreement were set,

forth on the record on November. 18,'201::? ,.

3. Th eagreet~ en t 'set forth on th e record at. that time constituted ~' binding ,arid enforceable agreement to' arbitrate the Issues In this easel in

accordance ,withtlJe te~ms noted in ~12' abov'e .

.4. '" ,Attorney Ferhat's 'ciaimthat there 'was no me~tJng of. the minds and .

,hence 'no a'gr.eement to arbItrate on Nov~mber 18th was wholly without merit. , , ,

5. Attorney Fahat paltially breached the agreement b~l\mrlateraJly

cancelling the arbitration that was ,scheduled for November 2'1, 2013 and/or

November 22, 2013.

'6. Attorney Ferhat's failure to proceed with arbitration during the

week or' November 18th, 'despite a clear agreement by all' parties to .do so,

unnecessarlly delayed the proce~dlngs In ,this case, created additional legal Page 9 of 11

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. ....work, " and created a.dditiona I expense ,.... _............. __ ..... _.... -_ .....•.........•... _................................................ ~.-~ -'''' ....... - ... ....... the _...p'19In~iff?·~nd..tb.~jr.(:Ql.JnsJ':).I, to_................. . ...' ..i:lJ/ _.oL ...... . which amounted to dilatory and obdurate conduct on the part of Attorney

Ferhat.

7. . -An award' of cOllnsel fees is proper as a $t;1nction when th~F6 is a . . specific fIndIng ..of dilatory,obdura'te, ~r vexatious conduct by a parti.cipant to

Irtigi;lti.on .. Yeager v. Kavlc, 765 A;2d 812,.815. (Pa. Super. 2000}i 42·Pa . C.S .

. § 25.03 (7).

8. . The number of hours spent by Atton')eys Miller and 'Bergstein on-

work occasion'ed by the actions or Attorney Ferhat w·as reasonable ..

.Furthermore, their hourly rate is reasonable! 91ven their ·experie'n.ce of mor~

than thirty years. . ·.9. . "An awt;1rd of counsel fees is .Intended. to reimburse .an :innocen·t· .

litigant For e~penses made necesst;1ry by the' conduct of an oppOnent." A;n. Mut ..·

Llal? Ins. Co. v. Zion & KleIn, P.A., 489 A~2d 259, 262 (Pa. Super. 1985)' .

10 . . Plaintiffs and t~ejr counsel are.entitred to an award of thirty four'

thousand six hundred,' Forty' six. dollars and forty cents ($34,64.6.40) as' 'a

sanction agalnst Attorney Ferhat, ,This sum is compris\3~ of the Plali1tiffs'airf~j'eJ .

hotel, 'rent'al cart 8rl'd fuel' expenses;. counsel's 'subpoena Fe.es, ·video· sel'vice

fee~/. JAMS fee,·.and FedEx feei and Attorneys MJlIer and BergsteIn's time from November 19,2013 through January'2, 2014,

i1. An award. of counsel fees for preparation of future ,proceedings

.would be improperly spec:ulative:

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tl/ll 'd S~IO 'ON

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·_ ._._. ___ .__. _ . .__ .__ _. ___ ._... :_ ..J?_~. __ P~Y!:D e.t1t.oLtoE!_ ?~()y'~.~.lITI1 .. \N iJL.Q~!jt pl!3. c;;~ _PI.a.ioJLj'fs __aI} 9 ._thE!.ir .__,.__ .. ___ .. _.. _.. _ counsel in the -same financial position that they would have been in jf Attorney

Ferhat had proceeded with the arbitration on November 21, 20:t3 and/or

November 22, 2013 as the partIes had agreed,

13, ',Whfill1 "parties agree to arbitration in a clear and unmistak~bJe ~ . ',

manner, then every ni:1?sonable effort will be made to favor sucn agreements,"

Emm,aus /1ufl. Auth v.. £Itz" 204A,2d 926 (Pa,i'964),

-, 14, There' cQntinues to exist-'a, bfndln'g agreement to ar.bl,trate the,

disputE! between these part',es, i.e. the' contingent agree~ent ,to arbitrate the matter within slx'ty (60) d'aYS,of Noverriber' 18, 201:3,

15.', It is _reasonable and' appropf'i~te' for this case to proceed', to

arbitration at, thl~ time, as coritemp,lated ~nd'agreed by'the pa'rties, the terms of. "

such' ~grqement b~ing those that were set.forth ,on the' record on, November 18,' 2013 and November 20 j 2013.

WHEREFORt:,1 we enter the fo(lowlng; ....

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............. }N.I'::1~.. ¢.Qt}.~I . 9.f.f.QMM9.N.PI,~A§.PfNQ.RIHAMEIQN. . CQUNIY..................... ""'."" """ . ' COMMONWEALTH OF PENNSYLVANIA CIVIl." DIVISION

MARY FRANC~S SILBERMAN'and ROBERT M. SIl.BERMAN, Cw48-CV~2009-9456

Plaintfff~~

v. VITO LqGUIDICE, M;D. and. ORTHOPAED~C ASSOCIATES OF ,HE 'GREATER l.EHIGH VALLEy(

" D efeo d~'lnts.

ORDER OF COURT

""';" ;AND N Ow, this 22nd day 'of January 20,14, upon' cons! deration of

" Plairitiffs' ,Motlqn to :Assess COllnsel Fees, Costs, and . . . . , .' ,: " sanctio~s, andfb!fowlng . ,a

hearing, it is 'herepy ORDERED that counsel for Defendants, Daniel J. ~erhati

l;:sq",shall pay, to, plaintiffs' counsel th~ sum. of thIrty fourthOLlsand siX ~'yndred

.forty sIx dollars and forty cents ($34,646:40) as a sanctIon for his obdurate and

. ,dilatory conduct, as set forth In the foregOIng Opinion. SaId sum shall be pai'd •. 4.. ~

wi,thin sixty,(60) days of the date of tl;is Order. Pi;ll!ure to make timely payment

or. sa'me may result In the impositIon of further sanctiqns. " ,

It, (s furtller ORDERED.. that this matte'r shall proceed to bl,nding

arbitration within thJrty (30)' d,ays of the date of this Order, or the earliest date thereafter upon which, Jerry Rosco.e, Esq. i.s avaIlable to arbitr~te,

BY THE COURT: l)' PAULA A. ROSCIOLI, J,

[lifl 'd ~SlO 'oN

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IN THE COURT OF COMMON PLEAS OF NORTHAMPTON COUNTY COMMONWEALTH OF PENNSYLVANIA _... ___ . _... . "_ .. _. __ . __ ......._._. . -'-'--'" ...-" CIVIlDIVI"Sl"ON-- ..... . . . . H _ ...•• _. __ .- ....• ---.

MARY FRANCES SILBERMAN and ROBERT M. SILBERMAN, C-48-CV-2009-94S6 Plaintiffs, ..... , v. r,;"'r -~

( ,

VITO LOGUIDICE, M.D. and :r - ~"J

-'. ORTHOPEDIC ASSOCIATES OF ( ;'"

THE GREATER LEHIGH VAllEY, ~:'.~.::. (": " 'lJ :. . ( r :.: ...~ Defendants. . t'n .;~ ~

;tJt f.:;1

STATEMENT PURSUANT TO PENNSYLVANIA RULE OF APPELLATE PROCEQVBs 12AS(id

AND NOW, this 4th day of June 2014, we hereby Issue the forrowlng

statement pursuant to Pennsylvania Rule of Appellate Procedure 1925(a):

The relevant factual and procedural history of this case ;s succinctly set forth

in our oplnlon of January 22, 2014, the concornltant Order from whIch the instant

appeal arIses. Accordingly, we rely on that hIstory In our discussion below.

On or about March 21, 2014, Defendant Orthopedic Associates ofthe Greater

LehIgh Valley, P.A. and aggrieved parties Attorney Daniel J. Ferhat and White and

Williams LLP (Appellants) filed a Notice of Appeal to the Superior Court of

Pennsylvania from our Order of Court dated January 22, 2014, wherein we imposed

sanctions upon Attorney Ferhat for his dilatory and obdurate conduct in connection

wlth an agreement to refer this matter to binding arbitration pursuant to 42 Pa.C.S.

§ 7362. Said appeal was tImely insofar as judgment was not entered in thIs case

until March 19, 2014. See, ~ Miller v, Jackson) 445 A.2d 160 (Pa. Super. 1982).

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Appellants also filed appropriate security in accordance with Pa.R.A.P. 1731(a) on _ .... _-_ ......................... ............ .

--Marc/i-21; ---Z014;1-Thtr-Uhdersighedtfiere-after--fiiecfan-or(ie-;;-on--A-prii 7, 2014,

pursuant to Pa.R.A.P. 1925(b), directing Appellants to file and serve upon the Court

a concise statement of the errors complained of on appeal. APpeflants timely filed such a statement, on April 28, 2014. In said statement, Appellants Identify ten

assIgnments of error with respect to our Order of January 22, 2014. We address

these below:

A. This Court did not err in _imposing sanctions upon Attorney Ferhat for his dilatory and obdurate conduct in refusing to proceed to the scheduJed arbitration on the basis of the parties' failure to have discussed certain terms prior to referring the matter for arbitration.

In the first sIx assignments of error raIsed in their statement, APpellants contend that this Court erred In imposing sanctions against Attorney FerMat

because a variety of terms were absent from the parties' agreement on November

18, 2013 to refer the matter to arbitration. More specjficaJly, APpellants contend that sanctions should not have been awarded against Attorney Ferhat because

"opposing counsel would not agree to sign a generar release as a condItion 'of the

arbitration agreement/' because "opposing counsel would not agree to the

satisfaction of liens as a condition of the arbitration agreement," and because

"confidentiality had not been addressed or agreed upon by the parties. II

(Statement, 11111, 3, 4). Appellants further contend In general that we erred In imposing sanctions where there was not an "agreement as to all material terms of

1 Appellants also filed a motion for reconsideration of our JanuDry 22, 2014 Order on March 21, 2014 which was properly before us pursuant to Pa.R.A.P. 1701{b)(3). That motIon was denied on April 7, 2014. Page 2 of 12

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the contract," (Statement, ~6). These dalms of error are factually incorrect, and - _. - - _. --- - .. _ .. " .- ....... •........•.......... , ._-_ .... "'~'".''''' ....... _.,,'" - - . .thelr premlselegally+nslgnificant; ................ ..._._...... "

As discussed in our January 22, 2014 opinIon, the parties entered Into an

oral agreement on the record on November 18, 2013 to refer this matter to binding

arbitration, wIth a h!gh/low agreement. (N.T. 11/18/13, pp.2~5). AI! parties agreed

to the essential terms of the agreement to arbltrate( whfch Included the fact that

they were agreeing to arbltrate; the hjgh/low dollar figures; the names of the MO

potential arbitrators, the one with the earliest availabilfty being that who would be

selectedi and that the arbitration was to take place that week If either arbitrator

was avalJable, with a 60 day contingent time flmlt set. (N. T. 11/18/13, pp.2-S.)

ThIs agreement was reached after a number of hours of negotiation between

counsel and in conference with the Court; no other terms were discussed prior to

placing the agreement on the record. (N.T. 1/10/14/ p.37). Following the Court's

recltation of this agreement on the record and both counsel's and the parties'

acknowledgement of theIr agreement with semel Attorney Farhat stated, "[Y]ou've correctly summarIzed what the materfal agreement is./I (N,T. 11/18/13, p.7).

Thereafter, Attorney Ferhat attempted to negotiate addItional terms to which

Plaintiffs and theIr counsel were not agreeable. (N,T. 11/18/13, pp.S~10). When

this attempt was rebuffed, the proceedings concluded with Attorney Ferhat's

agreement to proceed with the arbitratIon as discussed, and his statement that

there was nothIng further that he wIshed to address with respect to the agreement.

(N.T. 11/18/13, p.l0).

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YetI in spite of this clear agreement to arbitrate In accordance with the terms

------- -------setforth-- on the --Fee-onton-- NoVe-moe-f- "18;--;20- fj-;-and--deaF-staten\el1t--that--the--- material terms thereof were set forth on the record, Attorney Ferhat later

attempted to renegotiate the parties' agreementr under the guise of a claim that

the parties had not reached an agreement because numerous Issues had not been

addressed, as well as a daim that he had not agreed to delay damages being a

recoverable element of damages.

In an effort to salvage the arbitration agreement and assist the parties and

counsel, the Court held a telephone conference on the record on November 20[

2013. During that conference , Attorney Ferhat claimed that numerous "material"

elements had been omItted from the partIes' November 18, 2013 agreement,

resultIng In the parties' failure to have a meeting of the minds that would constitute

an enforceable agreement. He even went so far as to say, "Never dId r Intend to

make any type of an agreement," a statement that was clearly beHed by the record.

(N.T. 11/20/13, p.8). This statement was further belled by Ferhat's own conduct In

contacting Mr. Roscoe durIng the afternoon of November 18, 2013, inquiring as to

how he would like to handle motions In limine wIth respect to the arbitration that

was to take place that week. (N.T. 1/10/14, p.41.; P!.'s Ex. 6, 1/10/14).

During the November 20, 2013 conversation, a number of Issues were

discussed, including the Signing by Plaintiffs of a general release, an agreement for

the satisfactIon of liens, and an agreement for confidentiality. Attorney Todd Miller,

counsel for Plaintiffs/ easily agreed upon all of these points on behalf of his clIents

during this conference. (N.T. 11/20/2013, pp.8, 10, 16-17). AccordIngly, we find

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Appellant's claims in their statement that "opposing counsel would not agree" to be ........ _,--. ,," ..- .," ... " . " ............•.•. ., ..... -... __ .•............. " - ........ . specIOiJ$~--Appe!la-hts'-C:6nteriffo-n--that:- Pla-jntiffs' counsel would not agree to these

terms is even directly contradicted within their own statement of errors, in which

they state that delay damages "was the only remaining issue that had not been

agreed upon. /J (Statement, ~8). Moreover, the Court conduded that the attempt by

Appellants to suggest that there were outstanding issues was a ruse to justify their

failure to proceed with the arbltratJon, and an attempt to re-negotiate the

previously agreed-upon issue of delay damages.

Moreover, the failure of the partIes to include these Issues in thelr

dlscLlssions or agreement on November 18, 2013 did not render the agreement

unenforceable. "If the parties have agreed on the essentIal terms, the contract is

enforceable even [if] It is an informal memorandum requiring future approval or

negotiation of incidental terms./I Yel/ow Run Coal Co. v. A!ma~Elly-Yv Minesl Ltd"

426 A.2d 1152, 1155 (Pa. Super. 1981). "[TJhe fact that additIonal provisIons

would enhance the position of both parties Is not controllIng. What is necessary is

that the partIes agree to all the essential terms and intend the [agreement) to be

binding upon them." Field v, Golden TrIangle Broad, Inc,t 305 A.2d 689 1 694 (Pa.

1973). What is required to form an enforceable agreement Is that "the parties

agreed to all the essential terms and Intended the contract to be binding upon

them." Bredt v, BredtJ 326 A.2d 446} 449 (Pa. Super. 1974). Such was the

circumstance in this case on November 18 1 2013, in spIte of Attorney Ferhatts claim

to the contrary.

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Black's Law Dictionary defines an \\essential term" as a \\contractual provision

·that"must-be-"lncJudedfor"a-"contract"t'o-exist~"""BJfiCWs Law"15Ja:loriii;Y"iSCJg"C8th ed.

2004). The essential terms of the agreement at issue were those set forth on the

record on November 18, 2013, and do not include the Issues raIsed here by

Attorney Ferhat. He has cited no authority to support hIs premIse that the inclusion

of a general release ls necessary fn order to form a binding agreement to refer a

matter for arbitration pursuant to 42 Pa.C.S. § 7362, or that Its exclusIon from such

an agreement would render the agreement unenforceable. (Statement, 1/2).

LIkewise, our own research has uncovered no such authority. Attorney Ferhat's

subjectIve feeling wIth respect to the Importance of the addItional terms he wished

to include In the parties' agreement, and his regret of his oversight In neglecting to

discuss them in conference on November 18, 2013 notwithstanding, the absence of

those additIonal terms from the November 18, 2013 agreement did not render It a

nullity. Furthermore, the absence of a written arbitratIon agreement did not entitle

Attorney Ferhat to cancel the arbitration. As there was an enforceable agreement to

proceed to arbitration on November 21 and/or 22, 2013/ Attorney Ferhat's

cancellation of that scheduled arbitration amounted to obdurate and vexatious

conduct, which warranted the sanctions we fmposed. His conduct in the days

foJlowing November 18, 2013, up to and induding his cancellation of the arbitration,

cannot in any way be consIdered "good faith efforts conSistent with the faw to

negotIate all materiar terms to an arbitration contract and to reduce that agreement

to a written document" when the partIes had dearly entered into a binding oral

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agreement and his conduct in attempting to renegotIate that agreement ultimately .....•.•....•........... __ ............. . .........__ ...... .......... .. _"

........ -_ .. _- . _... - -ended-with his- breach-thereof.{StatEfmerit~- ·~-5):--···--·· .

B. This Court did not err in concluding that Attorney Farhat had engaged in dilatory and obdurate conduct resulting a breach of the parties' agreement, thus making the imposition of sanctions appropriate.

In thejr seventh and eIght assignments of error~ Appellants contend that this

Court erred in Imposing sanctions agaInst Attorney ferhat because, at the tIme the

sanctions were Imposed, the 60 day time period that the parties had agreed to as a contingent time frame In which to conduct the arbitration had not yet expIred, and

"in an ongoIng effort to resolve the dIspute amicably, [Attorney Ferhat] agreed to

arbitrate the case with the posslbility of delay damages, which was the only

remaining issue that had not been agreed upon." (Statement 1118).

It appears that Appellants misapprehend the nature of the sanctions

imposed. We are mrndful that the 60 day contingent time period had not yet expired, and in fact required the parties to proceed to arbltration under the terms

of their November 18, 2013 and November 20{ 2013 agreements wIthin thirty days

of our entry of the appealed~from Order on this basis. The sanctions we imposed

agaJnst Attorney Ferhat were not damages for breach of contract. Rather, they

were! as their name suggests! a penalty for his dilatory and obdurate conduct In

unnecessarHy delaying the proceedings, creating addltlona! legal work, and creatIng

addltlonal expense to Plaintiffs and their counsel. The fact that Attorney ferhat may

have extended an olive branch to Plaintiffs' counsel in an attempt to resolve the

matter - only after the motion for sanctIons was fHed - does not obviate the fact

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that he engaged In sanctJonable behavior in the days following November 18, 2013. ...................- ..•. - .... _..... _... .. .... ,............... , .. ,.•. -..._--.-, ." .. _." ............. - ................... .. ••• p . . . . . . . . . . . . __ . . . _ •••

-- ··AccordfnglY;-We--bellevelhese-assTg-nm-eiiis-or-error to also be without merlt.

c. This Court did not err in imposing sanctions where Attorney Farhat's conduct was the soJe reason why JAMS would not agree to arbitrate the case.

In their ninth assignment of error, Appellants assert that this "Court erred In

awardIng sanctions against Attorney Ferhat for refusing to particIpate in a private arbItration wIthout a written arbitration agreement where the agreed-upon

arbitrator, JAMS, would not agree to arbitrate the case without either an executed

arbitration agreement, which the Plaintiff's attorneyS would not Sign, or a court

order appointing JAMS as an arbItrator, which the Court did not issue./I (Statement,

'ij9). ThIs asslgnment of error amounts to nothIng more than an attempt to lay

blame elsewhere, when Attorney Ferliat's conduct was the reason why the

arbitration did not go forward as SCheduled.

After the parties agreed on November 18, 2013 to proceed to arbitratIon that

week with Mr. Roscoe, they contacted JAMS to make the necessary arrangements.

The case manager at JAMS, VeronIca Wightman, corresponded with counsel that

same day and indIcated that in order to proceed wIth the arbitratlon, It was

necessary for the parties to complete certain paperwork, specifically a Stipulation

and a Demand for ArbitratIon. (PI. 's Ex. 7, 1/10/14). Plaintiff's counsel completed

said paperwork and returned It to JAMS In short order. Attorney Farhat, in contrast,

refused to complete said paperwork. Because Attorney Ferhat refused to do so,

Plaintiff's counsel requested that the Court adopt the November 18, 2013

agreement as an order of court, in order to ensure the appointment by JAMS of Mr.

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Roscoe as the arbitrator in this matter for that week. (N.T. 11/20/13, p.3). Attorney

-Ferhat,--howeverj-objected-to-same-;--and-aCcb-rdinglylhe-Couitdfdriof-enfer-stJcii"an-----

order. (N.T. 11/20/13, p.4). Thus, It was left to Attorney Ferhat to execute the

necessary paperwork in order for JAMS to appoInt Mr. Roscoe. This could have been

easily accomplished by him sIgnIng the JAMS Stipulation. (PI.'s Ex. 7, 1/10/14.)

While Ms. Wightman of JAMS dId IndIcate that "JAMS must have a document sIgned

by the parties agreeing to have JAMS administer the arbitration, and In this case

Jerry Roscoe serve as the arbitrator/' she did not indicate that such a "document" had to be a written arbitration agreement as contemplated by Attorney Ferhat. (PI's

Ex. 12, 1/10/14). To the contrary, the Stipulation provided by JAMS is on its face

such a document, wherein It states: "It is stIpulated and agreed by aJl the Parties to

submit all disputes, claIms or controversIes to neutral binding arbitration at JAMS,

pursuant to JAMS Arbitration Administrative PoliCies and [ ... ] PartIes hereby agree

that [Jerry P. Roscoe, Esq.] shall serve as arbitrator In this matter[.]" (PI.'s Ex. 71

1/10/14). Accordingly, due to his failure to sign the Stipulation, Attorney Ferhat is

the only individual to blame for JAMS's inability to appoint the arbitrator in

November 2013. ThiS allegation of error 1St as those before It, without merit.

D. At no time did this Court conclude that delay damages are awardable In a private arbitration.

In their final aSSignment of error, Appellants contend that we "erred In

awardIng sanctions where the judge mistakenly concludes that delay damages are

awardable in a private arbltratlon. (Statement, 1110). This assignment of error Is 1t

premised upon a mistake of fact, as the Court never made such a conclusion. To

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the contrary, the Court facilitated a discussion on November 18, 2013 in which

·-Attorney- Miller-for-the- ····Ptajhtiffs-"i'n~:ide--jrdea-r- -thaf -fFiey;-··woLir(j-/ic£-agree to

arbitration in the event that they could not seek deJay damages, in an amount such

that the total combined award would not exceed the agreed~upon hIgh dollar figure.

The Court attempted to facilitate such an agreement. The Court stated on that

date: "That's an element of damages that you can argue are appropriate or not

appropriate. And let that be an issue for the arbItrator." (N.T. 11/18/13, p.8).

following which, the falfowrng discussion took place:

The Court: "[WJhat he's saying Is If delay damages brings It up to [the high

number,] we're entitled to delay damages. If the verdict Is [the high number] and

there's a request for delay, [the high number] Is the cap."

Mr. Ferhat: It's what are -

Mr. Miller: This Is the high whatever damages we prove or don't prove.

Thfs is the low whether we win or lose.

Mr, FerMat: Whatever the arbitrator says, whatever that number is, that's

what you agree to?

Mr. Miller; No, because you don't ask for delay damages until there's a

verdict, and that's the award of the arbitrator. It can't go hIgher than [the hIgh

number]. If we lose, it can't go lower than [the low number], What is so dIfficult

about that?

The Court: Let's not do that. Come on. If the award Is [the low number],

and then there's a request for delay damages made, that would be within the

purview of the arbitrator to award delay damages provided it's within the bounds of

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the hIgh and the low. If the award came back as [the hIgh number], then,

....... -Bbviously,,·youwon'tbe-able·· to .collecrany··ej elaY···difin-i:i"~fesbeci:l"use··yol/veal readY···- hit the high. And, of course, there's always the option of a complete defense

verdict. However that stUl would mean because it's a binding high-low that the

plaIntiff receIves [the low numberJ.

Mr. Ferhat: Okay.

The Court: Okay?

Mr. Ferhat; Yes.

The Court: Anything else? Mr. Ferhat: That's all, your Honor.

N.T. 11/18/13, pp.9*10. A review of this record clearly demonstrates that the

parties reached an agreement on the issue of delay damages, and agreed that they

were a recoverable element of damages.

While delay damages are clearly not recoverable pursuant to Pa.R.C.P., 238 In

an arbitration such as that at issue here, that did not preclude the partles from

entering lnto an arbItratIon agreement in which such damages were recoverable.

The partIes were free to contract as they saw fit, and in fact they dId make such an

agreement. The only conclusion reached by the Court with respect to delay

damages was that the exclusion of them was not a part of the agreement that

counsel had reached in their negotiations. Furthermore, insofar as Attorney Ferhat

expressly agreed on November 18/ 2013 that delay damages were available as a potential element of damages, the Court's conclusion wIth respect to same is of no

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moment. (N.T. 11/18/13, pp.9-10). Accordingly, we believe this assignment of ........................ ······error·to·aJso·be·wlth·outmerit:·· .... _...... _.

BY THE COURT:

f ctu Ia,. At !{ kJr.tJf PAULA A. ROSCIOl...I, J.

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