J-A32027-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

WAYNE MASCIARELLA                                IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellant

                       v.

THOMAS DEFULVIO

                                                     No. 2146 EDA 2016


                        Appeal from the Order June 16, 2016
              in the Court of Common Pleas of Philadelphia County
                  Civil Division at No(s): March Term 2016 3003


BEFORE: DUBOW, J., RANSOM, J., and PLATT, J.*

MEMORANDUM BY RANSOM, J.:                            FILED MARCH 03, 2017

        Appellant, Wayne Masciarella, appeals from the trial court’s order of

June 16, 2016, granting in part his petition to confirm an arbitration award

dated March 18, 2014, but denying his request to expel Appellee Thomas

Defulvio from their joint business premises. We affirm.

        Appellant and Appellee are joint members of a Pennsylvania limited

liability company known as www.busesforsale.com (“the Company”).         See

Award of Arbitrator, at 1. Pursuant to an arbitration agreement between the

parties, Appellant filed a demand for arbitration with the American

Arbitration Association, alleging that Appellee had for several years engaged

in a breach of his fiduciary duty owed to the company regarding the

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
J-A32027-16



purchase and sale of used buses for Appellee’s own benefit. See Award of

Arbitrator, at 1.

      On March 18, 2014, the arbitrator entered an award in favor of

Appellant.   The award noted Appellee’s hobby of collecting antique buses

prior to the formation of the Company. See Award of Arbitrator, at 1. The

arbitrator credited Appellee’s testimony that he took no profit he did not

share with Appellant, finding no evidence to the contrary.             Id. at 1.

Nevertheless, finding a breach of the operating agreement to act with

fiduciary duty towards the Company, the arbitrator ordered Appellee to: (1)

transfer title to buses acquired after January 1, 2007; (2) provide a

complete accounting of all profits or commissions received after January 1,

2007; (3) provide for the distribution of profits from the sale of any

transferred buses; and (4) pay all administrative fees. Id. 2-3. The order

provided that if Appellee failed to comply with the award, Appellant would be

entitled to expel Appellee from the LLC. Id. at 3.

      On March 30, 2016, Appellant filed a petition to enforce arbitration

award pursuant to 42 Pa.C.S. § 7342(b). The petition averred that Appellee

had failed to (1) transfer the title of certain buses; (2) failed to appropriately

list inventory; (3) failed to properly account for certain sales; and (4)

refused to sell certain inventory. See Petition to Confirm Arbitration Award,

¶¶ 22-23. Appellant requested that the court confirm the arbitration award,

enter judgment on the award, and enter an order (1) expelling Appellee

from the LLC; (2) terminating Appellee’s employment; (3) directing Appellee

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to return all LLC property and documents in his possession; and (4) ordering

Appellee to sell his LLC interest to Appellant. Id. at ¶ 28.

      Appellee filed an answer in opposition to Appellant’s petition, denying

the allegations made therein. See Answer to Petition to Confirm Arbitration

Award, ¶¶ 17-18, 22-28.

      On June 16, 2016, the court held a hearing on the petition. Appellant

and Richard Crohan, a salesman for the Company, testified in support of the

petition. According to Appellant, Appellee did not transfer the title to a 1946

CTD Transit bus.     See Notes of Testimony (N. T.), 6/16/16, at 10-11.

Appellant and Mr. Crohan testified that this bus was “discovered” in a New

Jersey repair shop. Id. at 12, 61, 79. However, during cross examination,

Appellant admitted he was aware of the 1946 CTD bus and the fact that it

had no title as of the time of arbitration, two years earlier.      Id. at 28.

Further, Appellant admitted he had been given titles to a series of buses by

Appellee, but was unaware of what the titles belonged to, as he had never

examined them. Id. at 28-29.

      Additionally, during cross-examination, Appellee provided evidence

that the Company’s books accurately reflected money deposited for the sale

of buses acquired after January 1, 2007, and that an accounting had been

performed.    Id. at 44-48.   Appellee suggested that the 1946 CTD Transit

bus could not be titled, due to its age and poor condition.      Id.   Further,

Appellee provided evidence that Appellant had known about the existence of

the 1946 CTD Transit bus and its lack of title for two years. Id. at 81-84.

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        At the conclusion of the hearing, the court ordered that any titles that

had not been turned over must be turned over and confirmed the arbitration

award. N. T. 6/16/16, at 89-91; see also Order, 6/16/16, at 1. Further,

the court held that Appellant had not produced evidence, either testimonial

or documentary, to demonstrate that Appellee had failed to comply with the

arbitration award. N. T. 6/16/16, at 89-91; see also Order, 6/16/16, at 1.

Accordingly, the court denied Appellant’s petition to expel Appellee from the

business. Id. The court also held that title to the 1946 CTD Transit bus was

not subject to production due to its age and condition. See Order, 6/16/16,

at 1.

        Appellant timely appealed. It does not appear, from the record, that

the trial court ordered Appellant to file a statement pursuant to Pa.R.A.P.

1925(b). Nevertheless, it issued an opinion in support of its decision.

        On appeal, Appellant raises the following issue for our review:

        Whether the [trial court] erred as a matter of law and abused its
        discretion in denying [Appellant’s] petition to enforce the
        arbitration award dated March 18, 2014 when in violation of the
        arbitration award: (a) [Appellee] failed to transfer, or cause to
        be transferred, to www.busesforsale.com, LLC, all of the buses
        titled in [Appellee’s] name; and (b) [Appellee] failed to provide
        [Appellant] an accounting of the proceeds of the sale of a bus
        transferred by [Appellee] to www.busesforsale.com, LLC
        pursuant to the arbitration award, and [Appellee] failed to
        distribute any proceeds from the sale of the bus to [Appellant].

Appellant’s Brief at 4.

        Appellant contends that the court erred in refusing to enforce his

arbitration award. According to Appellant, the court improperly modified the

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arbitration award by finding that there was insufficient evidence to justify

Appellee’s expulsion from the business, and in recognizing that title to the

1946 CTD Transit bus was not subject to production due to its age and

condition. See Appellant’s Brief at 24-30. We disagree.

     On the application of a party, made more than thirty days after an

award is made by an arbitrator under 42 Pa.C.S. § 7341, the court shall

enter an order confirming the award and shall enter a judgment or decree in

conformity with the order. See 42 Pa.C.S. §§ 7342(b), 7316. The decree

may be enforced as any other judgment or decree. See 42 Pa.C.S. § 7316.

Appellant does not challenge the arbitrators’ award, but instead, argues that

the trial court erred in refusing to enforce the award.   Insofar as the trial

court must interpret the arbitration award, we review that interpretation for

an abuse of discretion or error of law. Hall v. Nationwide Mut. Ins. Co.,

629 A.2d 954, 956 (Pa. Super. 1993) (finding trial court’s interpretation of

arbitrators’ award to be reasonable and not an abuse of discretion).

     In the instant case, the arbitrator ordered Appellee to transfer bus

titles, provide a complete accounting of profits and commissions, provide for

the distribution of profits, and to bear administrative fees.   Additionally, if

Appellee failed to comply with the award, Appellant would be entitled to

expel Appellee from the LLC.      The trial court confirmed the award and

possessed the ability to interpret the award to determine if enforcement was

necessary.


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         Accordingly, the court convened a hearing to take evidence on that

issue.    With regard to the trial court’s factual findings, we will not disturb

those findings on appeal absent an abuse of discretion or error of law. See

Ecksel v. Orleans Const. Co., 519 A.2d 1021, 1028 (Pa. Super. 1987). A

trial court’s findings with regard to the credibility and weight of the evidence

will stand unless an Appellant can show that the determination was

“manifestly erroneous, arbitrary and capricious or flagrantly contrary to the

evidence.” Id.

         The trial court concluded, based on the testimony offered, that

Appellant had not provided any evidence that Appellee had violated the

arbitration award. Instead, the evidence showed that Appellee had complied

with the award: he had performed an accounting of his sales, and Appellant

had been given the titles to the buses subject to the arbitration award with

the exception of the 1946 CTD Transit bus.       With regard to that title, the

trial court held, based upon the bus’s age and condition, no one could have

had the title, and accordingly Appellee was not required to produce it.

         We discern no abuse of discretion in the trial court’s conclusion that

Appellant did not provide sufficient evidence to justify the expulsion of

Appellee from the business. Ecksel, 519 A.2d at 1028.

         Order affirmed.




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J-A32027-16




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/3/2017




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