J-A18031-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

ANN DiPIETRO, D.D.S.,                           :      IN THE SUPERIOR COURT OF
                                                :            PENNSYLVANIA
                     Appellant                  :
                                                :
             v.                                 :
                                                :
GLIDEWELL LABORATORIES,                         :
                                                :
                     Appellee                   :            No. 1192 MDA 2014

                   Appeal from the Order entered on June 20, 2014
                  in the Court of Common Pleas of Luzerne County,
                            Civil Division, No. 4730 of 2014

BEFORE: FORD ELLIOTT, P.J.E., STABILE and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                              FILED AUGUST 21, 2015

      Ann DiPietro, D.D.S. (“DiPietro”), appeals from the Order dismissing

her Petition and Appeal to Vacate or Modify Award of Arbitrator (hereinafter

“Petition   and     Appeal”)    entered   in   her   favor   and   against   Glidewell

Laboratories (“Glidewell”). We affirm.

      DiPietro, a dentist, filed suit against Glidewell, alleging that it breached

an implied warranty of merchantability by selling to her defectively

manufactured dental crowns between 2001 and 2003, some of which failed

after placement in her patients’ mouths.             The trial court set forth the

relevant procedural background of the case as follows:

            The case was originally filed in the United States District
      Court for the Middle District of Pennsylvania. Thereafter, counsel
      for the parties agreed to submit the case to binding arbitration.
      The Honorable William W. Caldwell [“Judge Caldwell”] of the
      United States District Court for the Middle District of
      Pennsylvania wrote on June 5, 2012, that the parties “have
J-A18031-15


     agreed to submit this case to binding arbitration[,]” and directed
     that the matter be memorialized as “closed for statistical
     purposes.”

           Subsequently, the parties were unable to agree on an
     arbitrator and accordingly, upon Petition filed by [DiPietro],
     Judge Caldwell entered an Order on March 14, 2013 appointing
     Lehman Mediation Services, LLC, David E. Lehman [hereinafter
     “Mr. Lehman”] as arbitrator in the matter. On September 16,
     2013, following a hearing, Mr. Lehman issued his decision[,]
     ruling in favor of [DiPietro] and against [Glidewell] in the amount
     of $12,400.00.[1]

          [On, October 11, 2013, DiPietro] filed a Petition for
     Reconsideration[2] and[,] on or about March 10, 2014, Mr.
     Lehman    sent     a   letter denying  the   [Petition for

1
   In his decision, Mr. Lehman indicated that “[t]he parties agree that []
claims [for breach of an implied warranty of merchantability] must be
brought within four years, as provided in 2-275 of the U.C.C. (42 Pa.C.S.A.
§ 2725)[,]” and that “a breach of warranty occurs when tender of delivery is
made[.]” He further indicated that, because “[t]he lawsuit was filed on
February 26, 2007[, o]nly those crowns purchased by [] DiPietro and
delivered to her after []February 26, 2003 are available for her claim of
breach of warranty[, and a]ll others are barred by the applicable statute of
limitations.” Arbitrator’s Decision, 9/16/13, at 2. Mr. Lehman determined
that DiPietro had failed to demonstrate how many of the dental crowns,
purchased from and delivered by Glidewell after February 26, 2003, had
failed. See id. at 2. However, because Glidewell conceded that sixteen of
its dental crowns had failed, Mr. Lehman awarded damages to DiPietro for
those sixteen units at the lowest damage figure proposed by DiPietro ($755
per unit). See id. at 2-3.

2
  In her Petition for Reconsideration, DiPietro argued that the four-year
statute of limitations should have been tolled because Glidewell had
“offered” to repair and replace the defective dental crowns. See Petition for
Reconsideration, 10/11/13, at 2; see also id. at 1 (wherein DiPietro cites,
inter alia, Keller v. Volkswagen of Am., 733 A.2d 642, 646 (Pa. Super.
1999 (holding that the statute of limitations will be tolled by the “repair
doctrine” where the evidence reveals that repairs were, in fact, attempted,
representations were made that the completed repairs would cure the
defects, and the plaintiff relied upon such representations). Our review of
the record discloses no evidence that any “repairs” were made by Glidewell.



                                 -2-
J-A18031-15


      R]econsideration.[3]  [On April 9, 2014, DiPietro] filed [the]
      Petition and Appeal [] in the Court of Common Pleas of Luzerne
      County at No. 4730 of 2014.

             [Glidewell] filed [a] Motion to Strike/Dismiss said Petition
      [and Appeal] on [April 17], 2014. Following oral argument [at a
      hearing conducted on May 27, 2014], the Order which is the
      subject of [this] appeal [] was entered [on June 20, 2014,]
      granting the Motion to Strike/Dismiss[,] thereby dismissing the
      Petition [and Appeal].

Trial Court Opinion, 11/18/14, at 1-2 (unnumbered, footnotes added).

      On July 18, 2014, DiPietro filed a Notice of Appeal.      On March 17,

2015, this Court remanded the matter, directing that (1) the trial court enter

an order confirming the arbitration award; (2) DiPietro reduce that order to

final judgment; and (3) DiPietro transmit to this Court a certified

supplemental record establishing compliance with (1) and (2), above. See

DiPietro, D.D.S. v. Glidewell Labs., No. 1192 MDA 2014 (Pa. Super.

2015) (unpublished memorandum at 2). On March 20, 2015, the trial court

entered Judgment for DiPietro, in accordance with the arbitration award, and

on May 28, 2015, this Court received a certified supplemental record

establishing compliance with (1) and (2), above. Accordingly, the matter is

now ripe for our review.


3
  DiPietro also attached to her Petition for Reconsideration a “Bill of Costs,”
which itemized $27,767.79 in additional amounts that DiPietro requested Mr.
Lehman award her as further damages, in a revised arbitration award,
including the following:     expert fees; deposition fees; shipping costs,
arbitration costs, and legal fees. Mr. Lehman declined, noting that, in the
absence of legal authority that an arbitrator at common law may award
costs after the hearing and decision, he would not consider the matter
further.


                                  -3-
J-A18031-15


      On appeal, DiPietro raises the following issues:

      1. Where there is an agreement to arbitrate a matter[,] which
         was pending in the United States District Court for the Middle
         District of Pennsylvania, does the Court of Common Pleas of
         Luzerne County have jurisdiction on appeal from the
         arbitrator’s decision?

      2. Was the dismissal of [DiPietro’s] Petition [and Appeal]
         procedurally premature on a Motion to Strike/Dismiss, where
         there were clear allegations of irregularity, which caused the
         rendition of an unjust, inequitable or unconscionable award?

Brief for Appellant at 3.

      As DiPietro’s claims are related, we will address them together.

DiPietro contends, without citation to applicable legal authority, 4 that the

courts of common pleas are courts of general jurisdiction and can adjudicate

this matter, even though it originated from a binding arbitration agreement

in federal court. Id. at 7. DiPietro points to 42 Pa.C.S.A. § 73185 in support

of her position that the Court of Common Pleas of Luzerne County had

jurisdiction to strike or modify the binding arbitration award.       Brief for


4
 Pursuant to Pa.R.A.P. 2119(a), DiPietro was required to support her claims
with pertinent discussion and citation to relevant authority. However, our
review of DiPietro’s Brief on appeal reveals that it is deficient in both
aspects.
5
 Section 7318 provides, in pertinent part, as follows: “‘[j]urisdiction.’ --The
making of an agreement described in section 7303 (relating to validity of
agreement to arbitrate) providing for arbitration in this Commonwealth
confers jurisdiction on the courts of this Commonwealth to enforce the
agreement under this subchapter and to enter judgment on an award made
thereunder.” 42 Pa.C.S.A. § 7318 (emphasis supplied). Notably, this
provision does not confer jurisdiction upon a trial court to strike or modify an
arbitration award, as DiPietro had requested of the trial court herein.



                                  -4-
J-A18031-15


Appellant at 7. DiPietro asserts, without explanation, that the trial court’s

dismissal of her Petition and Appeal “was procedurally premature, since

there was no availability to create any record.”       Id. at 8.   DiPietro also

claims that Mr. Lehman failed to attach the bill of costs to the arbitration

award, and that, pursuant to 42 Pa.C.S.A. § 7341,6 it was “clearly unjust,

inequitable or unconscionable not to include the bill of costs.”      Id. at 8-9

(internal citations omitted).    DiPietro further asserts that, pursuant to 13




6
    Section 7341 provides that

        “[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
        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.A. § 7341.



                                    -5-
J-A18031-15


Pa.C.S.A. § 2302,7 a trial court is permitted to set aside unconscionable

contract provisions. Id. at 9. DiPietro also claims, without explanation, that

“the damage limitation for the statute of limitations issues was also not

proper.”    Id.   DiPietro further contends that, “[a]t a minimum, the [t]rial

[c]ourt should have modified the verdict to include the bill of costs, which

normally follows any verdict or arbitrator’s award.”     Id.   Finally, DiPietro

asserts that, “as in a demurrer, the [t]rial [c]ourt must accept as true facts

averred in the Complaint and must accord Complaint all inferences

reasonably deducted therefrom.” Id. Presumably equating her Petition and

Appeal to a civil complaint, DiPietro claims that she established the

“prerequisite to get over the procedural hurdle of a Motion to Dismiss.” Id.

        The standard of review of common law arbitration is very limited:


7
    Section 2302 provides as follows:

        (a) Finding and authority of court.--If the court as a matter of
        law finds the contract or any clause of the contract to have been
        unconscionable at the time it was made, the court may: (1)
        refuse to enforce the contract; (2) enforce the remainder of the
        contract without the unconscionable clause; or (3) so limit the
        application of any unconscionable clause as to avoid any
        unconscionable result.

        (b) Evidence by parties.--When it is claimed or appears to the
        court that the contract or any clause thereof may be
        unconscionable[,] the parties shall be afforded a reasonable
        opportunity to present evidence as to its commercial setting,
        purpose and effect to aid the court in making the determination.

13 Pa.C.S.A. § 2302. DiPietro’s reliance on section 2302 is misplaced, as it
pertains to contracts, and does not pertain to arbitration awards. Notably,
DiPietro has failed to cite to any legal authority indicating otherwise.


                                   -6-
J-A18031-15


      The award of an arbitrator in a nonjudicial arbitration which is
      not subject to (statutory arbitration) or [to] a similar statute
      regulating nonjudicial arbitration proceedings 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. Sage v. Greenspan, 2000 PA Super
      398, 765 A.2d 1139, 1142 (Pa. Super. 2000) (citation omitted).
      “The arbitrators are the final judges of both law and fact, and an
      arbitration award is not subject to reversal for a mistake of
      either.” F.J. Busse Co. v. Sheila Zipporah, L.P., 879 A.2d
      809, 811, 2005 PA Super 259 (Pa. Super. 2005) (citation
      omitted).    “[A] trial court order confirming a common law
      arbitration award will be reversed only for an abuse of discretion
      or an error of law.” Prudential Prop. & Cas. Ins. Com. v.
      Stein, 453 Pa. Super. 227, 683 A.2d 683, 685 (1996) (citation
      omitted).

U.S. Claims, Inc., v. Dougherty, 914 A.2d 874, 876-77 (Pa. Super. 2006).

      Here, the record reflects that the parties agreed to submit the matter

to binding common law arbitration. The record further demonstrates that,

following Mr. Lehman’s appointment as arbitrator, he held conferences with

counsel, conducted a hearing on June 12 and 13, 2013, and considered

post-hearing memoranda submitted by the parties, prior to making his

arbitration award. See Arbitrator’s Decision, 9/16/13, at 1. We discern no

evidence to support a claim that DiPietro “was denied a hearing or that

fraud, misconduct, corruption or other irregularity caused the rendition of an

unjust, inequitable or unconscionable award.”     See 42 Pa.C.S.A. § 7341;

see aslo Dougherty, 914 A.2d at 876-77 (citation omitted).           For this

reason, we conclude that the arbitration award was binding, and DiPietro’s




                                 -7-
J-A18031-15


claims otherwise lack merit.8 Accordingly, we affirm the trial court’s Order

dismissing DiPietro’s Petition and Appeal.9

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/21/2015




8
  We observe that section 7342(b) provides, in pertinent part, as follows:
“[o]n application of a party made more than 30 days after an award is made
by an arbitrator under section 7341 (relating to common law arbitration),
the court shall enter an order confirming the award and shall enter a
judgment or decree in conformity with the order.” 42 Pa.C.S.A. § 7342(b).
This section has consistently been interpreted to require that any challenge
to the arbitration award be made in an appeal to the Court of Common Pleas
by the filing of a petition to vacate or modify the arbitration award within 30
days of the date of the award. See Greenspan, 765 A.2d at 1142. Here,
DiPietro did not file her Petition and Appeal until April 9, 2014, which was
beyond the 30-day appeal period. Thus, even if DiPietro had been able to
establish that she had been “denied a hearing or that fraud, misconduct,
corruption or other irregularity caused the rendition of an unjust, inequitable
or unconscionable award,” as required by section 7341, the trial court was
divested of jurisdiction to vacate or modify the arbitration award because
DiPietro’s Petition and Appeal was untimely.
9
 Our conclusion is based on our review of the certified record, as well as the
parties’ Briefs and Glidewell’s Supplemental Brief.


                                  -8-
