J-A11043-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

LOUIS FIGUEROA                                    IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                             Appellant

                      v.

ALLSTATE INSURANCE COMPANY
                                                      No. 2006 EDA 2015


                  Appeal from the Order Entered May 28, 2015
       in the Court of Common Pleas of Montgomery County Civil Division
                            at No(s): No. 2008-06730

BEFORE: SHOGAN, MUNDY, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                           FILED JULY 08, 2016

        Appellant, Louis Figueroa, appeals from the order entered in the

Montgomery County Court of Common Pleas denying his motion to strike

and/or set aside the underinsured motorist (“UIM”) arbitration award in his

favor in the amount of $10,000.00 which was molded to zero dollars

reflecting a credit to Appellee, Allstate Insurance Company. Appellant avers

the trial court erred in failing to disqualify Appellee’s counsel, refusing to

enforce his subpoenas, and denying his request for a continuance.         We

affirm.

        We adopt the facts and procedural posture of this case as set forth by

the trial court. See Trial Ct. Op., 8/14/15, at 1-4. Appellant filed a court



*
    Former Justice specially assigned to the Superior Court.
J-A11043-16


ordered Pa.R.A.P. 1925(b) statement of errors complained of on appeal 1 and

the trial court filed a responsive opinion. This appeal followed.

      Appellant raises the following issues for our review:

         1. Whether the trial judge erred in refusing to find that
         [A]ppellant was denied a full and fair hearing of his
         underinsured motorist claims by virtue of the trial court’s
         failure to disqualify [A]ppellee’s counsel?

         2. Whether the trial judge erred in refusing to find that
         [A]ppellant was denied a full and fair hearing of his
         underinsured motorist claims by virtue of the arbitration
         panel’s failure to enforce subpoenas properly issued for
         witnesses and documents to be produced at the hearing on
         [A]ppellant’s behalf?

         3. Whether the trial judge erred in refusing to find that
         [A]ppellant was denied a full and fair hearing of his
         underinsured motorist claims by virtue of the arbitration
         panel’s failure to continue the arbitration hearing?

Appellant’s Brief at 3.

      First, Appellant contends he was denied a fair arbitration hearing

because the trial court refused to disqualify Appellee’s counsel, Kevin

McNulty, Esq. Id. at 11. He argues that the arbitration was conducted at

common law and thus the award may be vacated where it has been shown

that a party has been denied a fair hearing.2 Id.




1
 We note that Appellant’s Rule 1925(b) statement contained twelve issues.
We will not consider any issue if it has not been set forth in the statement of
questions involved. Any unraised claims are abandoned on appeal. See
City of Phila. v. Schweiker, 858 A.2d 75, 90 (Pa. 2004).




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J-A11043-16


      Appellant claims that at common law, an attorney owes a fiduciary

duty to his client, citing Maritrans v. Pepper, Hamilton & Sheetz, 602

A.2d 1277 (Pa. 1992). He avers

         [t]his fiduciary duty estops an advocate from undertaking
         representations adverse to that of a former (or present)
         client in a “substantially related” matter to that involving
         the initial client[.]    Id. at 1284.    Where such dual
         advocacy is attempted, there is a presumption of misuse of
         the original client’s confidences[.] Id.

Appellant’s Brief at 12.

2
  As the trial court noted, Appellant “incorrectly applies the common law
arbitration standard for vacatur in the instant matter.” Trial Ct. Op. at 5.
The Allstate insurance policy provides, in pertinent part, as follows:

         If We Cannot Agree
         If the insured person and we don’t agree:
         1. on that person’s right to receive damages, or

         2. on the amount of those damages,

         then the disagreement may be settled by arbitration. If
         both the insured person and we agree to settle by
         arbitration, arbitration will take place as provided
         under the Pennsylvania Uniform Arbitration Acts of
         1927 and 1980.

R.R. at 200a (some emphasis added). We cite to Appellee’s reproduced
record. In Cotterman v. Allstate Ins. Co., 666 A.2d 695 (Pa. Super.
1995), this court opined that

         the parties sought arbitration pursuant to the insurance
         policy which stated that “arbitration will take place as
         provided under the Pennsylvania Uniform Arbitration
         Acts of 1927 and 1980.” This language constitutes an
         express provision, by the parties, for statutory
         arbitration.

Id. at 697 (citation omitted and emphases added).



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J-A11043-16


     Our review is governed by the following principles:

        “[w]hen we review a trial court’s decision to affirm, modify
        or vacate an arbitration award arising from an insurance
        contract, this Court may reverse only for an abuse of
        discretion or error of law.” O’Connor-Kohler v. United
        Services Auto. Ass’n, 883 A.2d 673, 676 (Pa. Super.
        2005) (en banc), quoting Rudloff v. Nationwide Mut.
        Ins. Co., 806 A.2d 1270, 1272 (Pa. Super. 2002).

Hartford Ins. Co. v. O’Mara, 907 A.2d 589, 593 (Pa. Super. 2006).

     The Pennsylvania Uniform Arbitration Act provides:

         (1) On application of a party, the court shall vacate an
        award where:

           (i) the court would vacate the award under section
           7341 (relating to common law arbitration) if this
           subchapter were not applicable;

           (ii) there was evident partiality by an arbitrator
           appointed as a neutral or corruption or misconduct in
           any of the arbitrators prejudicing the rights of any
           party;

           (iii) the arbitrators exceeded their powers;

           (iv) the arbitrators refused to postpone the hearing
           upon good cause being shown therefor or refused to
           hear evidence material to the controversy or otherwise
           so conducted the hearing, contrary to the provisions of
           section 7307 (relating to hearing before arbitrators), as
           to prejudice substantially the rights of a party; or

           (v) 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(1)(i)-(v).


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J-A11043-16


     In the case sub judice, the trial court opined:

            [Appellant] alleges the trial court erred in failing to
        strike the arbitration award because Kevin McNulty,
        Esquire (“McNulty”) represented the tortfeasor, Belmonte,
        in the underlying action. [Appellant] alleges the trial court
        erred by denying his previously filed “Motion for
        Disqualification of Counsel” by order dated September 16,
        2010.

           [Appellant] relies on Maritrans[, supra] to support his
        claim that it was error not to order McNulty’s
        disqualification. [Appellant’s] reliance on Maritrans is
        misplaced. In Maritrans, over the course of a law firm’s
        decade long labor representation of a commercial
        company, the law firm learned the company’s long term
        objectives, competitive strategies and other sensitive
        information. After gaining this knowledge, the law firm
        undertook representation of several of the company’s
        competitors. The Supreme Court of Pennsylvania found
        that this constituted a breach of the law firm’s fiduciary
        duty to the company. The court established that a) an
        attorney owes their former or present client a fiduciary
        duty which prevents the attorney from representing an
        interest adverse to that client and b) a presumption of
        misuse of a client’s information exists when an attorney
        violates that duty.

           Although McNulty never represented [Appellant, he]
        argues that there is a presumption that McNulty misused
        [Appellant’s] confidences he gathered in the underlying
        action to the advantage of [Appellee] in this action. . . .
        McNulty represented the tortfeasor in the underlying action
        whose interests were adverse to [Appellant].        In the
        instant matter, McNulty again is representing a party
        adverse to [Appellant].     McNulty did not obtain any
        confidences from [Appellant] as he was the opposing
        counsel.    Since [Appellant] was never a former o[r]
        present client of McNulty, the Motion to disqualify was
        properly denied and provides no basis for vacatur of the
        award.




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J-A11043-16


Trial Ct. Op. at 6-7 (some emphasis added). We agree no relief is due. We

discern no abuse of discretion or error of law by the trial court.      See

Hartford Ins. Co., 907 A.2d at 593.

      Next, Appellant contends he was denied a full and fair arbitration

hearing because the court refused to enforce his properly issued subpoenas.3

Appellant’s Brief at 14.   Appellant avers that the arbitrators erred “[i]n

allowing [Appellee] to escape production of all the law firm and insurance

company’s records . . . .” Id. at 15. We find no relief is due.

      The Pennsylvania Uniform Arbitration Act provides:

         The arbitrators may issue subpoenas in the form
         prescribed by general rules for the attendance of witnesses
         and for the production of books, records, documents and
         other evidence. Subpoenas so issued shall be served and,
         upon application to the court by a party or by the
         arbitrators, shall be enforced in the manner provided or
         prescribed by law for the service and enforcement of
         subpoenas in a civil action.

42 Pa.C.S. § 7309(a) (emphasis added).

3
  We note that in support of his claim, Appellant cites Schultz v. Mount
Vernon Fire Ins. Co., 77 Lack. J. 66 (1976), Trzesniowski v. Erie Ins.
Exch., 59 Pa. D. & C.2d 44 (C.C.P. Erie 1973), Hopewell v. Adebimpe, 18
D. & C.3d 659 (C.C.P. Allegheny 1981), and Greynolds v. McAllister,
(C.C.P. Allegheny 1982). Appellant’s Brief at 14-15. It is well-settled that
Court of Common Pleas decisions are not binding precedent on this Court.
Discover Bank v. Stucka, 33 A.3d 82, 87–88 (Pa. Super. 2011). Appellant
presents no controlling legal authority in support of his claim. Appellant
states that “[i]t is settled that a new trial should be granted where the
excluded evidence could have affected the jury’s verdict,” citing Kremer v.
Janet Gleischer Gallery, Inc., 467 A.2d 377 (Pa. Super. 1983).
Appellant’s Brief at 15. Accordingly, we could find the issue waived. See
JJ. Deluca Co. v. Toll Naval Assocs., Inc., 56 A.3d 402, 412 (Pa. Super.
2012).



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J-A11043-16


        The arbitrators issued an order on September 18, 2013, which

provided:

           On August 29, 2013 [, Appellant] submitted a request by
           fax for subpoenae [sic] to a “hearing” convened just for
           the purposes of receiving the documents to be
           subpoenaed. . . . I am not authorized to convene a mock
           hearing simply to provide discovery that is not allowed.

R.R. at 223a. The order denied Appellant’s “request for subpoenae [sic] for

documents prior to the hearing on the merits . . . .”           Id. at 223a-24a

(emphasis added). The September 18th order provided that “[r]equests for

subpoenas to the hearing on the merits shall be made by motion, with the

form of subpoenae [sic] sought attached, after a date is selected for a

hearing on the merits.” Id. at 224a.

        On June 24, 2014, the arbitrators issued an order which provided that

“[n]o discovery requests will be entertained or allowed.” Id. at 29a. At the

arbitration hearing,4 counsel for Appellant stated he “eventually got” the

medical records and “we have all the medical records here.”         Id. at 40a,

53a.     He then stated he wanted to issue the subpoena because he didn’t

“necessarily have them all.” Id. at 53a.

        The trial court found no merit to Appellant’s claim, noting that

Appellant “introduced 88 pages of medical records at the arbitration in

support of his claim for damages.” Trial Ct. Op. at 8. We agree no relief is


4
    We note that Appellant did not appear at the arbitration.




                                       -7-
J-A11043-16


due. The issuance of subpoenas by the arbitrators is discretionary pursuant

to the Uniform Arbitration Act. See 42 Pa.C.S. § 7309(a). We discern no

abuse of discretion or error of law by the trial court.   See Hartford Ins.

Co., 907 A.2d at 593.

     Lastly, Appellant contends that he was denied a full and fair arbitration

hearing because the arbitrators refused to continue the hearing. Appellant’s

Brief at 16.   We reproduce Appellant’s argument in support of this claim

verbatim:

        [Appellant’s] present counsel clearly demonstrated good
        cause for the requested continuance of the arbitration
        hearing, or at least its bifurcation. Indeed, the necessity
        for the continuance arose from [Appellee’s] own intentional
        or negligent conduct, as well the corresponding conduct of
        its law firm.     The arbitrator’s unreasonable refusal to
        continue the arbitration hearing necessitates vacating the
        panel’s award, 42 Pa.C.S.A. § 7314; Cf. Aetna Cas. and
        Sur. Co. v. Dieetrich, 803 F. Supp. 1032 (M.D. Pa. 1992)
        (indicating, in dicta, that arbitrators exceed powers where
        they refuse to postpone arbitration hearing upon showing
        of good cause).

Appellant’s Brief at 16 (emphasis added).5

     Instantly, the trial court opined:

        This case arises from a motor vehicle accident which
        occurred on December 6, 2000.         The instant matter
        commenced on November 3, 2006. [Appellee] petitioned
        the court on April 29, 2009 to appoint a neutral arbitrator
        so the case could proceed to a UIM hearing. The neutral

5
  We note that “dicta does not constitute binding precedent.” Valles v.
Albert Einstein Med. Ctr., 758 A.2d 1238, 1246 (Pa. Super. 2000)
(citation omitted). Furthermore, lower federal court cases are not binding
precedent. See In re Stevenson, 40 A.3d 1212, 1221 (Pa. 2012).



                                     -8-
J-A11043-16


          arbitrator had been attempting to schedule the arbitration
          since March 2013[6] and granted [Appellant’s] counsel’s
          request that he would be able to proceed with the
          arbitration anytime during the last two weeks of June
          2014. The arbitrators again postponed the arbitration
          hearing to July 21, 201[4] pursuant to a continuance
          request on behalf of [Appellant].      The order granting
          [Appellant’s] continuance request made it very clear that
          no more continuances would be granted and that all
          counsel agreed to try the case to completion on that date.
          . . . [Appellant’s] counsel consented to the July 21, 2014
          arbitration date.

Trial Ct. Op. at 8-9 (footnote omitted). We agree no relief is due.

        The arbitrators did not refuse “to postpone the hearing upon good

cause being shown” by Appellant.       See 42 Pa.C.S. § 7314(1)(iv).     We

discern no abuse of discretion or error of law by the trial court.      See

Hartford Ins. Co., 907 A.2d at 593. Accordingly, we affirm the order of the

trial court denying the motion to strike and/or set aside the UIM arbitration

award which was molded to reflect a credit to Appellee.

        Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/8/2016




6
    See R.R. at 223a.



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