J-A29034-17 & J-A29046-17

                              2018 PA Super 42

ETHAN CIVAN AND ELANA CIVAN,            :     IN THE SUPERIOR COURT OF
                                        :           PENNSYLVANIA
                 Appellants             :
                                        :
                   v.                   :
                                        :
WINDERMERE FARMS, INC. AND              :
GAMBONE BROTHERS DEVELOPMENT            :
COMPANY,                                :
                                        :
                 Appellees              :   No. 1559 EDA 2017

                Appeal from the Order Dated April 12, 2017
           in the Court of Common Pleas of Montgomery County
                    Civil Division at No(s): 2006-26794

ETHAN CIVAN AND ELANA CIVAN,            :     IN THE SUPERIOR COURT OF
                                        :           PENNSYLVANIA
                 Appellants             :
                                        :
                   v.                   :
                                        :
WINDERMERE FARMS, INC. AND              :
GAMBONE BROTHERS DEVELOPMENT            :
COMPANY,                                :
                                        :
                 Appellees              :   No. 1560 EDA 2017

                Appeal from the Order Dated April 11, 2017
           in the Court of Common Pleas of Montgomery County
                    Civil Division at No(s): 2006-26794

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

OPINION BY STRASSBURGER, J.:            FILED FEBRUARY 27, 2018

     Ethan Civan and Elana Civan (the Civans) appeal from orders entered

April 11, 2017, and April 12, 2017, wherein the trial court granted the

petition of Gambone Brothers Development Company (Gambone) to vacate



*Retired Senior Judge assigned to the Superior Court.
J-A29034-17 & J-A29046-17

the arbitration award of July 29, 2008, and denied the Civans’ petition to

confirm the July 29, 2008 arbitration award as to Gambone. We affirm both

orders.

      On    December      5,   2006,    the   Civans    filed    a   complaint     against

Windermere Farms, Inc. (Windermere) and Gambone related to alleged

faulty construction of a new home sold by Windermere to the Civans

pursuant to an agreement of sale. Gambone is not a party to the agreement

of sale, but the Civans averred that Gambone designed and constructed the

home.      Complaint, 12/5/2006, at ¶ 9.               The counts asserted against

Gambone      included     negligence,   breach    of    implied      warranties,    fraud,

conspiracy, and violations of the Unfair Trade Practices and Consumer

Protection Law (UTPCPL), 73 P.S. §§ 201-1–201-9.3.

      Windermere and Gambone filed joint preliminary objections to the

complaint, asserting, inter alia, that the court must dismiss the action

against Windermere with prejudice in favor of arbitration due to the

existence of an agreement between the Civans and Windermere that

required the Civans to submit to binding arbitration all claims related to the

agreement of sale and construction of the home.                 Preliminary Objections,

12/22/2006, at ¶ 13.

      While the preliminary objections were still pending, the Civans filed a

motion     seeking   to    compel   arbitration   against        both   Gambone       and

Windermere. The Civans argued that although Gambone was not a party to



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the agreement of sale, it was a third-party beneficiary subject to the

arbitration    clause.    Motion   to   Compel   Arbitration,   2/7/2007,   at   2.

Windermere and Gambone did not file responses to the motion to compel

arbitration.

      On April 26, 2007, the trial court granted the motion to compel

arbitration, stating, “the parties shall enter private arbitration in accordance

with the parties’ agreement.”      Order, 4/26/2007, at 1.      The order did not

specify which parties must enter arbitration.

      The Civans and Windermere proceeded to arbitration, but Gambone

refused to participate.     Via a letter and subsequent memoranda of law,

Gambone advised the arbitrators that, based upon lack of jurisdiction,

Gambone objected to being included in any arbitration proceeding or award.

Gambone argued it was not subject to any agreement to arbitrate with the

Civans, and jurisdiction over the dispute between the Civans and Gambone

was exclusive to the court of common pleas.

      Nevertheless, the Civans persisted in seeking an arbitration award

against Gambone. On July 29, 2008, after finding the panel had jurisdiction

over Gambone, the arbitrators entered an award in favor of the Civans and

against Windermere and Gambone, jointly and severally, for $142,250.

Gambone timely filed a petition to vacate the arbitration award, to which the

Civans responded.        Because a praecipe for argument was not filed in

accordance with a local rule of civil procedure, neither the petition nor the



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J-A29034-17 & J-A29046-17

response was forwarded to a judge for disposition. The case sat stagnant

for eight years until a case management conference on September 28, 2016.

Following the conference, the Civans filed a praecipe for argument of

Gambone’s petition to vacate, rendering the petition ripe for disposition.

The Civans also filed a petition to confirm and enter judgment on the July

29, 2008 arbitration award.      After argument regarding both petitions, the

trial court entered two orders: one on April 11, 2017, granting Gambone’s

petition to vacate and vacating the arbitration award as to Gambone (Vacate

Order), and one on April 12, 2017, denying the Civans’ petition to confirm

the arbitration award against Gambone (Denial of Confirmation Order). The

Civans timely filed notices of appeal for each order, and the Civans and the

trial court complied with Pa.R.A.P. 1925.

        Before we reach the merits of these appeals, we must consider the

appealability of the Vacate Order and the Denial of Confirmation Order. The

Civans argue that both orders are final orders pursuant to Pa.R.A.P. 341.

The Civans’ Briefs1 at 1.     Windermere and Gambone, on the other hand,

urge this Court to quash these appeals for lack of jurisdiction. Windermere

and Gambone contend that both orders are interlocutory orders that do not




1   The Civans’ briefs in both appeals are identical except for the cover page.



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J-A29034-17 & J-A29046-17

dispose of all claims and all parties and therefore are not final appealable

orders pursuant to Pa.R.A.P. 341.2 Brief of Windermere and Gambone at 1.

      Neither party is correct. Notwithstanding that the claims set forth in

the December 5, 2006 complaint against Gambone are still pending in the

court of common pleas by virtue of the vacation of the arbitration award as

to Gambone, this Court has jurisdiction to hear these appeals pursuant to

Pa.R.A.P. 311(a)(8) and 42 Pa.C.S. §§ 7320(a)(3) and (a)(5).               See

Pa.R.A.P. 311(a)(8) (“An appeal may be taken as of right and without

reference to Pa.R.A.P. 341(c) from … [a]n order that is made final or

appealable by statute … even though the order does not dispose of all claims

and of all parties.”); 42 Pa.C.S. § 7320(a)(3),(5) (“An appeal may be taken

from … [a] court order confirming or denying confirmation of an award … [or

a] court order vacating an award without directing a rehearing.”).

      Thus, we turn our attention to the merits. The Civans ask this Court

to resolve the following questions.

    (1)     Did the [trial] court, in vacating the arbitration award
          against Gambone, exceed the scope of review applicable to
          common law arbitration awards?

    (2)      Did the [trial] court err in finding that [Gambone]
          presented clear evidence that Gambone was denied a hearing
          or that fraud, misconduct, corruption[,] or other irregularity
          caused the rendition of an unjust, inequitable or



2
 Windermere and Gambone did not file a brief in No. 1560 EDA 2017, but
argued in its brief submitted in No. 1559 EDA 2017 that neither the Vacate
Order nor the Denial of Confirmation Order was final.


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J-A29034-17 & J-A29046-17


        unconscionable award, the burden of proof required by 42 Pa.
        C.S.[] § 7341[?]

  (3)      Did the [trial] court err in denying [the Civans’] petition to
        confirm the common law arbitration award?

The Civans’ Briefs at 6 (suggested answers and unnecessary articles,

quotation marks, and party designations omitted).

     We will address the Civans’ first two issues together.     Generally, we

use the following standard to review a trial court’s ruling on a petition to

vacate a common law arbitration award.

     Judicial review of a common law arbitration award is severely
     limited as otherwise arbitration would be an unnecessary stage
     of litigation, causing only delay and expense without settling the
     dispute. 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. Neither we nor the trial court may retry the
     issues addressed in arbitration or review the tribunal’s
     disposition of the merits of the case. 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. The appellant bears the burden to establish
     both the underlying irregularity and the resulting inequity by
     clear, precise, and indubitable evidence. In this context,
     irregularity refers to the process employed in reaching the result
     of the arbitration, not to the result itself.

U.S. Spaces, Inc. v. Berkshire Hathaway Home Servs., Fox & Roach,

165 A.3d 931, 934 (Pa. Super. 2017) (internal citations omitted).

     This standard is derived in part from the Uniform Arbitration Act (the

Act), which provides:

     [t]he 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

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J-A29034-17 & J-A29046-17


      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.

      Here, the Civans and Windermere are parties to an agreement of sale,

whereby the Civans, the “Buyer,” agreed to purchase a lot and a new home

to be constructed by Windermere, the “Seller.”            Agreement of Sale,

12/30/1999, at 1. The Agreement of Sale contains an arbitration clause in

paragraph 23, providing that

      [a]ny and all disputes arising out of or relating to the sale of the
      premises or construction of a house thereon or otherwise arising
      out of this Agreement shall be decided by binding arbitration as
      the exclusive forum for determination pursuant to Subchapter B
      of the Pennsylvania Uniform Arbitration Act (42 Pa. Cons. Stat.
      Ann. §73.41 et seq.) being common law arbitration. The dispute
      shall be determined by a panel of three arbitrators: one selected
      and paid for by the Seller; one selected and paid for by the
      Buyer: and the third selected by the Seller’s and the Buyer’s
      arbitrators and the cost split equally by the parties. A majority
      decision of the arbitrators shall be controlling. … This paragraph
      shall survive settlement.

Id. at 3.

      The Civans acknowledge that Gambone is not a party to the

Agreement of Sale. The Civans’ Briefs at 8. Nonetheless, the Civans argue

that the trial court’s April 26, 2007 order subjected Gambone to the

jurisdiction of the arbitration panel.   Id. at 14.   Even if it did not, based

upon the trial court’s narrow standard of review, the Civans argue that since

the arbitration panel ruled that it had jurisdiction over Gambone, the trial

court did not have the authority to substitute its judgment to the contrary.

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J-A29034-17 & J-A29046-17

Id. at 15.   Finally, the Civans argue that Gambone failed to demonstrate

that “fraud, misconduct, corruption, or other irregularity caused the

rendition of an unjust, inequitable or unconscionable arbitration award,” and

stress that Gambone had the opportunity to participate in the arbitration

hearing, but declined to do so. Id. at 18-19.

      The April 26, 2007 order, which granted the Civans’ motion to compel

arbitration, stated, “the parties shall enter private arbitration in accordance

with the parties’ agreement.”     Order, 4/26/2007, at 1 (emphasis added).

In its Pa.R.A.P. 1925(a) opinion, the trial court offered the following

analysis: “[l]ogic and grammar dictate that ‘the parties’ refers to the same

individuals or entities in both instances. Therefore, the order applied only to

those individuals or entities entering into the agreement. This is consistent

with the general rule that ‘only parties to an arbitration agreement are

subject to arbitration.’” Trial Court Opinion, 7/20/2017, at 11 (citing Elwyn

v. DeLuca, 48 A.3d 457, 461 (Pa. Super. 2012)).

      We agree with the trial court that the April 26, 2007 order does not

clearly mandate that Gambone, a non-party to the Agreement of Sale,

submit to arbitration. A court has the power to order the parties to proceed

with arbitration upon an application to compel arbitration.     42 Pa.C.S. §§

7304, 7342(a). However, in order to obtain an order to compel arbitration,

the moving party must show the existence of a valid written agreement to

arbitrate. 42 Pa.C.S. §§ 7303, 7304, 7342(a).



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J-A29034-17 & J-A29046-17


      Arbitration is a matter of contract, and parties to a contract
      cannot be compelled to arbitrate a given issue absent an
      agreement between them to arbitrate that issue. Even though it
      is now the policy of the law to favor settlement of disputes by
      arbitration and to promote the swift and orderly disposition of
      claims, arbitration agreements are to be strictly construed and
      such agreements should not be extended by implication. In
      general, only parties to an arbitration agreement are subject to
      arbitration. However, a nonparty, such as a third-party
      beneficiary, may fall within the scope of an arbitration
      agreement if that is the parties’ intent.[3]

Pisano v. Extendicare Homes, Inc., 77 A.3d 651, 661 (Pa. Super. 2013)

(citing Elwyn, 48 A.3d at 461, and Schoellhammer's Hatboro Manor,

Inc. v. Local Joint Executive Board of Philadelphia, 231 A.2d 160, 164

(Pa. 1967) (declining to compel non-signatory of agreement to submit to

arbitration because “arbitration, a matter of contract, should not be

compelled of a party unless such party, by contract, has agreed to such

arbitration”)).

3
  In its motion to compel arbitration, the Civans contended that Gambone
was subject to the arbitration clause because it was a third-party beneficiary
to the Agreement of Sale. Motion to Compel Arbitration, 3/23/2007, at 2.
On appeal, the Civans baldly state that because Gambone marketed itself as
the builder, constructed the home as the general contractor, accepted
payments for optional modifications to the home, and generally directed all
matters pertinent to the sale transaction, “it was appropriate for Gambone to
be subject to the arbitration clause.” The Civans’ Briefs at 8. Other than
citing to addenda to the Agreement of Sale wherein the Civans indicated that
they would issue a payment to Gambone for optional modifications to the
house, the Civans neither point to places in the record nor legal authority
supporting these contentions. Therefore, the Civans, by failing to develop
the claim in their briefs, have waived any contention that Gambone, a non-
signatory, is bound by the Agreement of Sale as a third-party beneficiary or
through some other legal theory. See Brown v. Greyhound Lines, Inc.,
142 A.3d 1, 13 (Pa. Super. 2016) (stating that failure to develop an
argument waives issue).


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J-A29034-17 & J-A29046-17

      While Gambone is a party to the Civans’ lawsuit, the Agreement of

Sale does not name Gambone as a party.              See Agreement of Sale,

12/30/1999, at 1.     There is no question that the April 26, 2007 order to

arbitrate applied to Windermere – a party to the lawsuit and a party to the

Agreement of Sale – but because Gambone is not a party to the Agreement

of Sale, the Civans fail to convince us that the order to compel arbitration

applied to Gambone.

      Turning    next   to   the   Civans’    argument   that   the   trial   court

impermissibly substituted its judgment for that of the arbitration panel

regarding whether the panel had jurisdiction over Gambone, we observe that

it is well settled that arbitrators do not have the power to decide

jurisdictional issues such as whether a party has agreed to arbitrate a

dispute.   “Our decisional law has made clear that the issue of whether a

party agreed to arbitrate a dispute is a threshold, jurisdictional question that

must be decided by the court.” Pisano, 77 A.3d at 654 (internal citations

omitted). See also Flightways Corp. v. Keystone Helicopter Corp., 331

A.2d 184, 185 (Pa. 1975) (holding that “whether an agreement to arbitrate

was entered into” is a question for the court); Ross Dev. Co. v. Advanced

Bldg. Dev., Inc., 803 A.2d 194, 199 (Pa. Super. 2002) (holding that courts,

not arbitrators, must decide questions of substantive arbitrability such as

whether there is a valid agreement to arbitrate and whether disputed claim

is within scope of agreement); Smith v. Cumberland Group, Ltd., 687



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J-A29034-17 & J-A29046-17

A.2d 1167, 1171 (Pa. Super. 1997) (“Arbitration is a matter of contract and,

as such, it is for the court to determine whether an express agreement

between the parties to arbitrate [exists].”).

      Most cases addressing jurisdictional disputes arise prior to arbitration,

such as in the context of a motion to stay or petition to enjoin arbitration.

While petitioning the trial court to enjoin the arbitration is the preferred

procedure, this Court has entertained a jurisdictionally-based challenge to an

award after its entry, holding that a petition to enjoin is not the exclusive

method whereby a party may attack an arbitrator’s jurisdiction.             Gaslin,

Inc. v. L.G.C. Exports, Inc., 482 A.2d 1117, 1122-23 (Pa. Super. 1984),

superseded     by   statute   on    other   grounds   as   stated   in   Beriker    v.

Permagrain Products, Inc., 500 A.2d 178 (Pa. Super. 1985).

      In Gaslin, appellees purchased an exclusive license to operate a

restaurant through a franchise agreement containing an arbitration clause.

Id. at 1119.    Jorge Figueroa signed the franchise agreement on behalf of

one of the licensors.     Id.      A dispute arose stemming from the franchise

agreement, and one of the licensees filed a demand for arbitration.                Id.

Figueroa objected to the jurisdiction of the arbitrators, alleging that he was

not a party to the franchise agreement in his individual capacity, and did not

participate in the arbitration. Id. The arbitrator entered an award against

Figeuroa and the licensors, and the licensee subsequently filed a motion to

confirm the award.     Id.    Figueroa filed an answer opposing the motion to



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J-A29034-17 & J-A29046-17

confirm, again asserting that he was not a party to the franchise agreement.

Id. The trial court confirmed the award, and Figueroa appealed. Id.

        In its review of the order confirming the award against Figueroa, this

Court noted that Figueroa did not participate in the arbitration hearing and

objected to the lack of jurisdiction at every stage of the proceeding. 4 Id. at

1123 n.7.     After deciding that common-law arbitration principles governed

the case, this Court stated, “although the arbitrator is the final judge of law

and fact, his power has not been extended to the degree that he may

determine his own jurisdiction, that is, whether the arbitration tribunal has

the requisite power to hear the particular case brought before it.”     Id. at

1121.     The Court acknowledged that ordinarily a court may set aside an

award only upon a showing of denial of a hearing or fraud, misconduct,

corruption, or similar irregularity leading to an unjust, inequitable, or

unconscionable award. Id. at 1124 n. 8. Nevertheless, the Court concluded

that

        the central inquiry is not whether the award was just, but
        whether Figueroa was bound to arbitrate this dispute in the first
        place. If Figueroa was not a party to the franchise agreement

4
  In Beriker, this Court noted that subsequent to its decision in Gaslin, the
legislature amended the Act to require courts to confirm arbitration awards
upon application of either party if thirty days have passed without either
party taking action to modify or vacate the award. Beriker, 500 A.2d at
179 (citing 42 Pa.C.S. § 7342(b)). After the amendment, to lodge an
objection to an award, parties must file a petition to vacate instead of simply
opposing a motion to confirm as the appellant did in Gaslin. Id. In the
instant case, Gambone notified the arbitrators of its objection, did not
participate in the arbitration, and timely filed a petition to vacate.


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J-A29034-17 & J-A29046-17


      that contained the arbitration provision, then he did not consent
      to arbitrate this dispute and the award against him was
      improper.

Id.   Accordingly, the Court reversed the judgment, vacated the order

confirming the award as to Figueroa, and remanded to the trial court so that

the court could hold an evidentiary hearing to determine whether Figueroa

signed the franchise agreement in his individual capacity. Id. at 1124.

      After Gaslin, this Court has examined whether a trial court possessed

the authority to vacate an arbitration award based on its conclusion that an

agreement to arbitrate did not exist on two occasions.    See Schwartz v.

Wells Fargo Advisors, LLC, 58 A.3d 1270 (Pa. Super. 2012); Gwin

Engineers, Inc. v. Cricket Club Estates Dev. Group, 555 A.2d 1328 (Pa.

Super. 1989).

      In Schwartz, the appellant filed a civil complaint against a financial

firm and his former financial advisor. Schwartz, 58 A.3d at 1270. The firm

and advisor filed a petition to compel arbitration pursuant to subsection

7304(a) of the Act, which Schwartz opposed, contending that he could not

be compelled to arbitrate because no agreement to arbitrate between the

parties existed. Id. at 1272. The trial court granted the motion to compel

and Schwartz did not appeal. Id. After receiving a nominal award through

arbitration, Schwartz filed a petition to vacate the award, which the trial

court granted. Id.




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        On appeal, this Court held that section 7314 of the Act expressly

forbids courts from vacating awards based upon the lack of an agreement to

arbitrate if a court had determined previously pursuant to section 7304 that

an agreement exists.5 Id. at 1274. No such prior determination exists here.

In dictum in a footnote, the Court observed that the parties disputed

whether the underlying procedure was a statutory arbitration subject to

subchapter A of the Act or a common law arbitration subject to subchapter B

of the Act. Id. at 1275 n.3. The Court explained that it analyzed the appeal

as if the proceedings were subject to section 7314, which is applicable only

to statutory arbitration, because the trial court based its order on that

section. Id. After noting the narrow standard for vacating a common law

arbitration award pursuant to section 7341, and without analyzing any

authority other than that section’s language, the Court stated, “[s]ince the

5
    Section 7314 states in relevant part that a court shall vacate an award if

        there was no agreement to arbitrate and the issue of the
        existence of an agreement to arbitrate was not adversely
        determined in proceedings under section 7304 (relating to court
        proceedings to compel or stay arbitration) and the applicant-
        party raised the issue of the existence of an agreement to
        arbitrate at the hearing….

42 Pa.C.S. § 7314(a)(1)(v). Section 7314 applies to statutory arbitrations
only, not to common law arbitrations like the arbitration at issue here. 42
Pa.C.S. § 7342(a). As explained supra, in general, section 7341 applies to
petitions to vacate a common law arbitration award. 42 Pa.C.S. § 7341
(“The award of an arbitrator … 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.”).


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J-A29034-17 & J-A29046-17

absence of an agreement to arbitrate is not a basis for vacating an award

under [section] 7341, the disposition of this appeal would be the same

regardless of whether the parties engaged in statutory or common law

arbitration.” Id. However, because Schwartz is contrary to Gaslin, which

has never been overruled, relating to a party’s general ability to challenge

an award on jurisdictional grounds after its entry, we decline to find the

dictum in Schwartz to be controlling in this matter.

      In Gwin, this Court was asked to review an order confirming an

arbitration award after an individual declined to participate and objected to

the arbitration, contending that he was not a party to the arbitration

agreement in his individual capacity and had disassociated from the

partnership subject to the agreement. Gwin, 555 A.2d at 1330. Without

addressing Gaslin, the Court determined that it would be improper to reach

the appellant’s arguments because his claim did not fall into any of the

statutory grounds for vacating or modifying the award.     Id. at 1330. The

Court stated that the appellant should have brought his claim to the

attention of the arbitrator because the claim “would be appropriate for the

arbitrator’s resolution but it is not a claim upon which we can grant review.”

Id.

      Not only did the Court fail to cite to authority to support this

statement, the statement is contrary to a long line of cases holding that the

determination of whether there is a valid agreement to arbitrate is for the



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courts, not the arbitrator. Flightways Corp., 331 A.2d at 185; Smith, 687

A.2d at 1171; Ross Dev. Co., 803 A.2d at 199; Pisano, 77 A.3d at 654.

Furthermore, without legally relevant distinctions of fact or intervening

authority by our Supreme Court calling into question a previous decision of

this Court, it was beyond the power of the Court in Gwin to overrule Gaslin,

a fortiori to do it sub silentio. See Commonwealth v. Hull, 705 A.2d 911,

912 (Pa. Super. 1998) (holding prior decisions of the Superior Court are

binding precedent on a subsequent three-judge panel of this Court).

      Neither this Court nor our Supreme Court has addressed directly the

tension between the holdings in Gaslin and Gwin. The cases citing Gwin

do not rely upon it for its specific holding that the validity of an agreement is

an issue for the arbitrator and that the limited standard of review in section

7341 prohibits a court from reviewing a challenge to an award based upon

the lack of a valid agreement.         Furthermore, this Court cited Gaslin

approvingly shortly after its decision in Gwin in a case holding that a trial

court erred in confirming an arbitration award because the arbitrators

exceeded the power and authority given to them.         Shapiro v. Keystone,

558 A.2d 891 (Pa. Super. 1989).

      In Shapiro, an insured filed a petition to compel arbitration in

Philadelphia County.     Id. at 892.     After the petition was granted, the

insurance company filed a petition for reconsideration and a petition to stay

the arbitration, arguing that the parties had agreed by their contract to



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arbitrate in Camden County, New Jersey.      Id. The trial court denied both

petitions, and arbitration commenced. Id. The insurance company did not

participate in the arbitration except to object to holding the arbitration

anywhere besides Camden County. Id. at 893. The arbitrators issued an

award in the insured’s favor. The insured filed a petition to confirm, which

was granted, and the insurance company filed a petition to vacate, which

was denied. Id.

      On appeal, this Court summarized the narrow standard of review

applicable to common-law arbitration awards, but also stated the following:

      An arbitration award can be challenged if the arbitrators, in
      conducting hearings and making an award, exceed the power
      and authority given to them. This power and authority of the
      arbitrators is wholly dependent upon the terms of the agreement
      of the parties, who may place restrictions on their submission to
      arbitration. The arbitrators cannot validly determine a dispute if
      they violate or act inconsistently with the terms of the
      submission. Sley System Garages v. Transport Workers
      Union of America, AFL-CIO, Local 700, [] 178 A.2d 560, 561
      ([Pa.] 1962); Giant Markets, Inc. v. Sigma Marketing
      Systems, Inc., [] 459 A.2d 765, 768 ([Pa. Super.] 1983). See
      also[ Gaslin, 482 A.2d at 1121] (“although the arbitrator is the
      final judge of law and fact, his power has not been extended to
      the degree that he may determine his own jurisdiction, that is,
      whether the arbitration tribunal has the requisite power to hear
      the particular case brought before it.”).

Id. at 893-94.     The Court concluded that “[t]he court could enforce

arbitration … only in accordance with the terms of the parties’ agreement.”

Id.   Therefore, the Court held that the trial court erred by confirming the

award and declining to enforce the parties’ agreement. Id.




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      Gaslin is also in accord with settled law that only “parties of equal

bargaining power [who] consent in an agreement to settle all future

disputes as to its interpretation by utilizing common law arbitration … []are

bound by that provision, and the function of the courts is limited to enforcing

this contractual provision according to its terms as established by the

parties.”6   Fastuca v. L.W. Molnar & Assocs., 10 A.3d 1230, 1245 (Pa.

2011) (emphasis added).       Indeed, subchapter B of the Act relating to

common law arbitration applies specifically to “agreement[s] to arbitrate a

controversy on a nonjudicial basis.” 42 Pa.C.S. § 7302(a).

      In other words, in order to invoke the limited judicial standard of

review of an arbitration award, the parties have to agree to arbitrate the



6 Although it is not controlling authority, we also find the rationale used in
Bank One Delaware N.A. v. Mitchell, 70 Pa. D. & C. 4th 353 (Pa. Com. Pl.
(Allegheny County) 2005), aff’d 897 A.2d 512 (Pa. Super. 2006) (per
curiam), to be persuasive. In Bank One, the Honorable R. Stanton Wettick,
Jr. declined to confirm an arbitration award and enter judgment in favor of a
credit card company and against a cardholder who had not participated in
the proceedings despite notice to the cardholder.           Citing the cases
establishing that an arbitrator does not have authority to decide questions of
jurisdiction, including Gaslin, Judge Wettick determined that the cardholder
was not required to arbitrate the credit card company’s claim until the
company established in court that its claim was governed by a valid
agreement to arbitrate pursuant to section 7304. Id. at 360-61. Otherwise,
by seeking to obtain a judgment through a motion to confirm an award
against a party who did not participate in the arbitration proceedings, the
credit card company “is attempting to create … another method for obtaining
default judgments that does not provide the same safeguards as those
provided by the Pennsylvania Rules of Civil Procedure....” Id. at 363. In
short, Judge Wettick determined that arbitration cannot be “a method for
obtaining a judgment against a party who was never ordered to arbitrate
and who did not participate in the arbitration proceedings.” Id. at 368.


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dispute in the first place.   Therefore, we hold that the narrow standard of

review derived from section 7341 is not applicable when reviewing a petition

to vacate based upon a claim that the parties do not have a valid agreement

to arbitrate.

        Turning to the instant case, as discussed supra, Gambone is not a

party to the Agreement of Sale.       Therefore, Gambone never agreed to

arbitrate disputes arising out of the Agreement of Sale. As also discussed

supra, the Civans failed to obtain an order compelling Gambone to arbitrate

pursuant to subsection 7304(a).      Gambone notified the arbitrators of its

objections and declined to participate in the arbitration proceeding based on

its contention that the arbitration panel lacked jurisdiction.    Therefore,

because Gambone is not a party to the Agreement and there was no court

order specifically mandating Gambone’s submission to arbitration, the

arbitration panel exceeded its power by determining that the panel had

jurisdiction over Gambone. Further, because there is no valid agreement to

arbitrate between Gambone and the Civans, the trial court did not err by

vacating the arbitration award against Gambone.

        Nor did the trial court err by refusing to confirm the award against

Gambone.        The Civans argue that because more than thirty days have

passed, the trial court was required to confirm the award pursuant to 42

Pa.C.S. § 7342(b). The Civans’ Brief at 20. Section 7342 states in pertinent

part:



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     (b) Confirmation and Judgment. On application of a party made
     more than thirty (30) days after an award is made by an
     arbitration under Section 7341 (relating to common law
     arbitration), the Court shall enter the award confirming the
     award and shall enter a judgment or decree in conformity with
     the order….

42 Pa.C.S. § 7342(b).

     We have consistently interpreted this language to mean that the trial

court is required to confirm the award unless the other party has filed a

petition to vacate or modify the award within 30 days of the date of the

award. Lowther v. Roxborough Mem’l Hosp., 738 A.2d 480 (Pa. Super.

1999); Beriker, 500 A.2d at 179. Here, Gambone filed a petition to vacate

the award within thirty days of the date of the award.      For the reasons

stated supra, the trial court properly vacated the award.    Therefore, the

court was not required to confirm the award in accordance with subsection

7342(b).

     Accordingly, we affirm the trial court’s April 11, 2017 and April 12,

2017 orders.

     Orders affirmed.




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J-A29034-17 & J-A29046-17

Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary




Date: 2/27/18




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