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                               2015 PA Super 6

STATE FARM MUTUAL AUTOMOTIVE                     IN THE SUPERIOR COURT OF
INSURANCE COMPANY                                      PENNSYLVANIA
                   Appellee

                    v.

BARISHA DILL

                         Appellant                   No. 3120 EDA 2012


          Appeal from the Judgment Entered December 19, 2012
           In the Court of Common Pleas of Philadelphia County
              Civil Division at No(s): 1370 March Term, 2012


BEFORE: BENDER, P.J.E., BOWES, PANELLA, DONOHUE, SHOGAN, ALLEN,
        LAZARUS, WECHT, AND STABILE, JJ.

CONCURRING AND DISSENTING OPINION BY BOWES, J.:

FILED JANUARY 13, 2015

      I agree with Judge Shogan, and thus disagree with the learned

majority, that waiver is inappropriate on the facts herein.       There is no

indication that Ms. Dill, who was eleven years old at the time of the accident,

or her present counsel, who did not represent her in the underlying third-

party case, had actual knowledge of Attorney Kevin McNulty’s role in that

litigation at the time of the arbitration.   Furthermore, I am reluctant to

penalize Ms. Dill for failing to recall or discover Mr. McNulty’s earlier

participation, especially when Mr. McNulty maintained he had no memory of

the case and obviously did not check for possible conflicts.
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       Absent waiver, I agree with Judge Donohue that this appeal requires

construction of the insurance policy language detailing the selection of

UIM/UM arbitrators. The State Farm insurance policy herein provides:

       Each party shall select a competent arbitrator. These two shall
       select a competent and impartial third arbitrator. If unable to
       agree on a third one within 30 days, either party may request a
       judge of a court of record in the county in which the arbitration
       is pending to select a third one. The written decision of any two
       arbitrators shall be binding on each party.

State Farm Policy at 20. A “competent arbitrator” is undefined, although it

appears that one need not be impartial to be competent. 1 I also concur with

Judge Donohue that Pa.R.C.P. 1302, governing compulsory arbitration, has

no application herein. Consequently, its incorporation of the Code of Judicial

Conduct disqualification rules does not inform our review. Hence, I disagree

with Judge Shogan’s premise that Mr. McNulty’s earlier representation of the

third-party tortfeasor automatically disqualifies him from serving as an

arbitrator in this UIM proceeding. See Canon 3(C)(1)(b).2

____________________________________________


1
   This distinction is not an aberration. The Rules of Professional Conduct
place different constraints on subsequent representation by an attorney who
formerly acted as a neutral arbitrator and one who was “selected as a
partisan of party in a multi-member arbitration panel.” See Pa.R.Prof.C.
1.12(a) and (d).
2
    The trial court concluded that after Attorney McNulty withdrew his
appearance and Daniel Lewbart, Esquire, entered his appearance, “neither
McNaulty (sic) nor any attorney in his office had further involvement in the
third party action.” Trial Court Opinion, 3/7/13, at 1. However, contrary to
the trial court’s representation, the docket reflects that Attorney Lewbart
(Footnote Continued Next Page)


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      I do believe, however, that the word “competent” as used in the

policy, connotes more than knowledge, skill and expertise.         In the legal

context, competence involves qualification to be a party, witness, or in this

case, an arbitrator.3       There may be situations where a skilled attorney is

incompetent to serve as an arbitrator due to a conflict of interest, present or

prior involvement with the parties, a pecuniary benefit in the outcome, or

outside knowledge of the disputed facts. His or her failure to disclose the

circumstances or withdraw may constitute an irregularity within the meaning

of 42 Pa.C.S. § 7341.4 Partiality alone, however, does not render a partisan

arbitrator in a multi-member panel incompetent to serve.

                       _______________________
(Footnote Continued)

was Attorney McNulty’s partner in the firm of Gerlamo McNulty Divis
Lewbart.
3
   In addition to mental condition and immaturity, a person may be rendered
incompetent to be a witness by virtue of another’s assertion of a privilege.
See 42 Pa.C.S. §§ 5925, 5926, 5927 (spouses incompetent to testify against
each other in civil cases with certain exceptions). See also the Dead Man’s
Act, 20 Pa.C.S. § 2209 (defining circumstances when witnesses are
incompetent to testify against a decedent). Pa.R.E. 605 renders a presiding
judge incompetent to testify as a witness at the trial or other proceeding.
Pa.R.E. 606(a) renders a juror incompetent “to testify as a witness before
the other jurors at the trial.”
4
   As counsel for the third-party tortfeasor in the underlying case, Attorney
McNulty may have been privy to facts regarding Ms. Dill’s injuries and
treatment, as well as the amounts of available coverages. Generally, UIM
arbitrators are not informed of amounts received in the prior third-party or
UIM cases, nor the applicable UM/UIM coverages. They are asked to
evaluate the injury, and after the fact, the award is molded to reflect
payments already made and available coverages.           Herein State Farm
(Footnote Continued Next Page)


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      Even assuming that Attorney McNulty was not competent within the

meaning of the insurance policy, and that his failure to disclose his prior

involvement or knowledge of the underlying facts constituted an irregularity

within the meaning of 42 Pa.C.S. § 7341, in my view, the setting aside of

the award is still not warranted in this case.5        Our scope of review is

extremely narrow.         See McKenna v. Sosso, 745 A.2d 1, 4 (Pa.Super.

1999), citing Chervenak, Keane & Co., Inc. v. Hotel Rittenhouse

Assocs., Inc., 477 A.2d 482, 485 (Pa.Super. 1984) (review “limited to

whether the appellant was deprived of a hearing or whether ‘fraud,

misconduct, corruption or other irregularity’ tainted the award”).

      This Court recently reaffirmed in F.J. Busse Co. v. Zipporah, L.P.,

879 A.2d 809, 811 (Pa.Super. 2005), that the appellant “bears the burden to

establish both the underlying irregularity and the resulting inequity by

'clear, precise and indubitable evidence.’”       (emphasis supplied).   In this

context, “irregularity refers to the process employed in reaching the result of

the arbitration, not to the result itself[,]” id., and the irregularity may

appear in the conduct of either the arbitrators or the parties.      Paugh v.
                       _______________________
(Footnote Continued)

apprised the arbitrators of the amounts Ms. Dill previously received, as well
as the limits of available UIM coverage. However, Ms. Dill did not object.
Thus, I agree with the Majority that this issue is waived.
5
   The Majority examined Attorney McNulty’s failure to remove himself to
determine whether it was an irregularity that would excuse Ms. Dill’s waiver
within the meaning of 42 Pa.C.S. § 7362(d). Majority Opinion, at 6 n.2.



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Nationwide Ins. Co., 420 A.2d 452, 458 (Pa.Super. 1980); see also

Nicholson Supply Co. v. Pennsy Supply, Inc., 468 A.2d 808 (Pa.Super.

1983) (vacating arbitration award where plaintiff submitted evidence ex

parte). However, the appellant must also demonstrate by “‘clear, precise,

and indubitable’ evidence” the “resulting inequity,” Chervenak, supra at

485, i.e., that the irregularity resulted in “the rendition of an unjust,

inequitable or unconscionable award.”         42 Pa.C.S. § 7341 (emphasis

supplied) (“The award of an arbitrator in a nonjudicial arbitration . . . 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.”).

     Ms. Dill did not clearly demonstrate that Attorney McNulty’s prior

involvement in the third-party case tainted the process and rendered this

award unjust, unconscionable, or inequitable.      In fact, she makes no

argument at all relative to this issue. My review of the record revealed that

Ms. Dill underwent physical therapy for lower back and left shoulder pain

attributed to strain and sprain twice per week for four months, and then

once per week for two additional months. N.T., 6/15/12, at 30-32. She felt

approximately forty percent better. Id. She saw a pain specialist and an

orthopedic specialist over the next two years. An MRI of her shoulder three

years after the accident was unremarkable.        Although home exercises

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provided some relief, Ms. Dill stopped the regimen because “it started to

become painful.” Id. at 49. Although Ms. Dill denied that she was able to

participate in sports, she was confronted with the fact that during the spring

of her sophomore year in high school, she ran the one-hundred-yard dash,

the girls’ four-by-one-hundred relay, and participated in the long jump at the

Ches-Mont track and field championships.        Id. at 77-79.    Despite her

complaints of ongoing pain, she could not explain why she had not sought a

second opinion from other medical professionals.

      Ms. Dill had already received $30,000 in compensation for her injuries,

a fact known by all three arbitrators. I see nothing that suggests that the

panel’s unanimous finding that no additional compensation was due was

unjust, unconscionable, or inequitable. Hence, I would affirm on that basis.




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