HomeMy WebLinkAbout06-5524
CREEK VIEW HOMES, INC. : IN THE COURT OF COMMON PLEAS OF
Plaintiff, : CUMBERLAND COUNTY, PENNSYLVANIA
V. NO. DG '5' -2 y
DAVID L. STONER and ROSE-MARIE CIVIL ACTION -LAW
STONER, Husband and Wife
Defendants.
PETITION TO VACATE ARBITRATION AWARD
PURSUANT TO 42 Pa.C.S.A. & 7341
AND NOW this 20TH day of September, 2006, comes the Defendants, DAVID L.
STONER and ROSE-MARIE STONER, by and through their legal counsel, Irwin & McKnight,
and respectfully makes the following statements:
1. Plaintiff, Creek View Homes, Inc., is a Pennsylvania business with its principal
place of business at 5900 Spring Road, Shermans Dale, Perry County, Pennsylvania (hereinafter
"Builder').
2. Defendants, David L. Stoner and Rose Marie Stoner, are adult individuals
residing at 171 Boyer Road, Carlisle, Cumberland County, Pennsylvania (hereinafter "Owners").
3. On or about April 16, 2004, the parties entered into an "Agreement to Deliver and
Assemble a Modular Home," a standardized contract prepared by Builder, which principally
obligated Builder to deliver and assemble a modular home on land in the names of Owners
located at 171 Boyer Road, Carlisle. A true and correct copy of the parties' contract is attached
hereto and incorporated herein as Exhibit "A."
4. On or about April 27, 2004, the parties executed a Change Order to their contract
which established a payment schedule for the purchase price of the modular home. A true and
correct copy of the Change Order is attached hereto and incorporated herein as Exhibit "B."
5. The parties also executed certain additional documents amending the contract to
detail the specifications and construction allowances agreed to by the parties, which documents
are not immediately relevant to the instant petition.
6. Paragraph 16 of the parties' contract provides as follows:
Should any disputes arise relative to the performance of this Agreement
that the Parties can not resolve, the dispute shall be referred to a single arbitrator
selected by the builder and acceptable to the buyer. Should the Parties not agree,
the dispute should be subject to arbitration under and in accordance with the rules
and regulations of the American Arbitration Association. All attorney fees that
shall be incurred in the resolution of the dispute shall be the responsibility of the
party not prevailing in the dispute.
7. Upon information and belief, the arbitration provision in Paragraph 16 is a
standard form provision used in all its contracts and is either non-negotiable or primarily non-
negotiable.
8. The arbitration provision in Paragraph 16 does not state or advise consumers that
all parties retain the right to seek relief in small claims court for disputes within the jurisdiction ,
of the applicable small claims court.
9. A dispute arose between the Builder and the Owners regarding whether the work
had been completed by Builder and accepted by Owner, and correspondingly whether the final
payment was due to Builder under the payment schedule agreed to by the parties.
10. On or about January 20, 2005, the parties held a settlement conference at the -
subject property.
2
11. Builder ultimately refused to complete the work as agreed to in the settlement
conference, and ultimately on or about December 8, 2005, new legal counsel for Builder filed a
Demand for Arbitration with the American Arbitration Association seeking payment from
owners of $8,252.17. A true and correct copy of the Demand for Arbitration is attached hereto
and incorporated herein as Exhibit "C."
12. Among other expenses, Builder sought recovery of $1,050
13. On or about December 20, 2005, the American Arbitration Association informed
the parties' legal counsel that arbitration would proceed under its Construction Industry
Arbitration Rules and Mediation Procedures, in effect at the time, and be administered under the
Fast Track Procedures because the Builder's claim was for less than $10,000.00.
14. The arbitrator, Jeffrey A. Anderson, was ultimately selected by the American
Arbitration Association on or about April 28, 2006.
15. At no time did the Builder, its legal counsel, the appointed arbitrator, or the
American Arbitration Association ever inform Owners or their legal counsel that the
Supplementary Procedures for Consumer-Related Disputes would also apply to the facts of this
case. A true and correct copy of the AAA Supplementary Procedures for Consumer-Related
Disputes is attached hereto and incorporated herein as Exhibit "D."
16. Rule C-1(a) on Exhibit "D" provides that the supplemental rules shall apply
whenever AAA rules are used in an agreement between a consumer and a business where the
business has a standardized application of arbitration clauses, the terms are non-negotiable or ,
primarily non-negotiable, and the product or service is for personal or household use.
3
17. Rule C-1(d) on Exhibit "D" further provides that despite the terms of such an
arbitration clause in business's standardized contract, the parties may still take their claims to a
small claims court.
18. Rule C-8 on Exhibit "D" further provides that where the consumer's counterclaim
does not exceed $10,000.00, the consumer is responsible for one-half of the arbitrator's fee up to
a maximum of $125, and that the business must pay for all arbitrator compensation deposits
beyond those that are the responsibility of the consumer.
19. Both the Builder's original claim, and the Owners' counterclaim were less than
the threshold of $10,000.00.
20. Neither the Builder, its legal counsel, the appointed arbitrator, nor the American
Arbitration Association ever informed Owners or their legal counsel that the Owners were only
responsible for payment of $125 for the arbitrator's fee, and that the Builder was responsible for
all additional deposits.
21. Owners in fact paid the initial sum of $450.00 for the appointment of the
arbitrator.
22. Builder, its legal counsel, and the American Arbitration Association then
threatened to cancel or postpone the scheduled arbitration unless Owners paid an additional
deposit of $900.00 in order to reserve a second day of hearings before the arbitrator.
23. In exchange for expanding the length of a one day hearing before the arbitrator,
Owners were not required to pay any additional deposits, but again at no time were the Owners
informed that under the Supplementary Procedures for Consumer-Related Disputes they were
only required to pay $125.00.
4
24. Furthermore, at no time did the Builder, its legal counsel, the appointed arbitrator,
or the American Arbitration Association ever inform Owners or their legal counsel that the
Association had also adopted a "Consumer Due Process Protocol" which also applies to the facts
of this case. A true and correct copy of the AAA Consumer Due Process Protocol is attached
hereto and incorporated herein as Exhibit "E."
25. Principle 5 of Exhibit "B" provides that consumer agreements should clearly state
that all parties retain the right to seek relief in a small claims court for disputes within their
jurisdiction.
26. Principle 11 of Exhibit "E" provides that consumers should be given notice of
their option to make use of applicable small claims court procedures as an alternative to binding
arbitration.
27. Principle 15(3) of Exhibit "E" provides that upon request the arbitrator should
provide a brief written explanation of the basis for any award and the arbitrator should discuss
the matter with parties prior to the arbitration hearing.
28. The arbitration hearing in this matter was held on August 7, 2006.
29. At no time prior to the arbitration on August 7, 2006, did the arbitrator or the
American Arbitration Association discuss the matter of a written explanation of any award, or
the right of a consumer to request such a written explanation.
30. On or about August 21, 2006, the arbitrator signed his award which was then
transmitted to legal counsel for the parties. A true and correct copy of the Award of Arbitrator is
attached hereto and incorporated herein as Exhibit "F."
31. The Award attached as Exhibit "F" awarded a principal balance to Builder less
than the final payment alleged to be due under the parties' contract, as amended.
5
32. In addition, the Award attached as Exhibit "F" awarded to Builder the sum of
$3,600.00 for "Legal and expert fees."
33. The parties' contract attached as Exhibit "A" does not allow for a prevailing party
to be awarded expert fees.
34. At the arbitration hearing held on August 7, 2006, legal counsel for Builder
conceded in his closing statement that the parties' contract did not allow for recovery of expert
fees or costs.
35. Furthermore, the applicable rules of the American Arbitration Association,
namely the Construction Industry Arbitration Rules and Mediation Procedures, state that the
expenses of witnesses for shall be paid by the party producing such witnesses. A true and correct
copy of R-50 through R-52 of the Construction Industry Arbitration Rules and Mediation
Procedures are attached hereto and incorporated herein as Exhibit "G."
36. The award attached as Exhibit "F" further provides that Owners shall reimburse
Builder an additional $475.00, "representing that portion of said fees and expenses in excess of
the apportioned costs previously incurred by Claimant."
37. An award charging Owners with the responsibility for additional arbitration fees
or expenses is in violation of the applicable AAA rules and procedures outlined above, and
therefore beyond the power and scope of the arbitrator.
38. Under 42 Pa. C.S.A. § 7341, an award of an arbitrator in a nonjudicial arbitration
can be vacated or modified where it is clearly shown that fraud, misconduct, corruption or other
irregularity caused the rendition of an unjust, inequitable or unconscionable award.
39. Pennsylvania courts have interpreted this statute to allow an examination of
whether the common law arbitrator exceeded the scope of his authority.
6
40. Because of the failure to advise Owners of important rights granted to them under
supplemental rules and policies, the inclusion of expert fees in his award, and the inclusion of
additional arbitration fees and expenses in his award, the award is in violation of 42 Pa. C.S.A. §
7341, and should be vacated.
41. This petition is filed within thirty (30) days after the delivery of the notice of
award to Owners.
WHEREFORE, Defendants/Petitioners, David L. Stoner and Rose Marie Stoner,
respectfully requests that this Honorable Court vacate the award of the American Arbitration
Association entered in this matter.
IRWIN & McKNIGHT
c
c
Dou as Gpurt filler, squire
Supreme C I.D. No. 83776
West Pomfret Professional Building
60 West Pomfret Street
Carlisle, Pennsylvania 17013-3222
(717) 249-2353
Attorney for Plaintiffs
Date: September 20, 2006
7
VERIFICATION
The foregoing document is based upon information which has been gathered by our
counsel and ourselves in the preparation of this action. We have read the statements made in this
document and they are true and correct to the best of our knowledge, information and belief. We
understand that false statements herein made are subject to the penalties of 18 Pa.C.S.A. Section
4904, relating to unsworn falsification to authorities.
ROSE MARIE STONER
? "- I
DAVID L. STONER
Date: September 20, 2006
EXHIBIT "A"
ACRGF.MEN" 'O 111?,LIVGIZ AND ASSI- Nilli.h. A l+ AIIIILAIZ IIONII?
1. CONTRACT PARTIES
C'REF.K VIEW HOMES, INC, a Pennsylvania bllsltlCSS Corpormion, I Iel-ell hCr referred 10 as
the builder), of 6077 Spring Road, Shermans Dale, Perry County, Pennsylvania 17090 and
David 1.. S Rose-Marie Stoner, (hereafter referred la as the buyer(s)), of 12111 Claremont
Road, Carlisle, PA 17013. Nereby agree to build a house on property IOCated al hovel. Road,
Carlisle, 1'a 171113 and legally describe[[ as: Munroe'l'ownshilt fnr further detail See Decd.
2. CONTRACT DOCUMENT'S
The terms of this contract include all documents specifically listed below and constitute the
entire terms of the agreement between the parties. 'file terms of this contract shall prevail over
any conflicting provision in tilt documents incorporated by reli rence.
a) Building, Specifications and Options list signer[ and dated 04-116-04with 2 tininbcr Ill'
pages is hereby incorporated into this docununt.
b) Floor Plan of home to he assembled signed and dated 04-16-01 with I of pales is
hereby incorporated into this doctunent.
c) construction Allowance statement signed and doled 114-16-04 with I ol'pages is
hereby incorporated into this doCUmCnI.
d) None signed and dated NIA with NIA ol'pages is hereby incorporated into this
dOCtlntcnt.
3. BUILDING PLANS
This Agreement is for the purchase of it modular home. The limdular hon,o is I',ICton' Iluill anti
is not built by the builder. I he ilactot'y has provided the plats, specifications and drawings whirls
are Incorporated by rclcrcncc into Purtk?rva h 2, Conroo An'un/oWs, and which are to he used
fnr Construction )('(Ile house. The builder makes no representation about the quality of these
plans beyond those specifically provided in the warranties clause of this contract.
4. COMPLETION T111\11F
,Assumim,, all conditions are satisfied and weather permits work to be perlormed under the
contract the work shall conuncoce promptly. as soon as pcssihlc, alter the permits ncccss:u'1 t?l
start Vvork have been issued, and construction stoney becomes available for use with lids project
as described ill Miro,,,ruph a. It is specifically agreed that nothing, heroin alters the fact that
specific completion dates CAN NOT be guaranteed turd tn'e not part hereor.
;lay time lost by reason ofchanocs to the contract or changes, in plans by the buyer(s), other acts
of IIIC huycr(,) strikes- weather conditions not reasonably anlicipalcd; or any other condition not
Within the huilder's control shall be dddcd to the specified time far completion. For any delay,;
\-%hich are not the builders responsibility, the contract shall incrca r by any increase in the
builder's costs caused by the delay.
S. FINANCING (check the correct paragraph)
?JI'his A!L..I'ccment is contingent upon the buyer(s) obtaining a ConsU-uclion loan tritlt
commitment liar a permllncnt loan in Ute amount of $ doilars. 'file lluilder reserves the
ri'In t0 review :my terms or conditions 01,1110 construction loan and may, at his discretion choose
1101 to accept thCm. "[rile Builder may then declare this agreement null and Void and bulb parties
vxiII he lolly released From the contract. All fires and expenses ofobteinin?; a loan shall he hornC
solely and exclosiVCly by the huyer(s}. The huyer(sl understands the consUAIC6011 will nut st:111
anal the home \N ill not be ordered until construction money becomes nvailable liar use with this
project and necessary building permits lore issued.
[;] I Ili,, ALm-cemcm is not contingent on the buyer(s) obtaining a consunclion loan. The huyerls)
are pad ink cash fur the total ol,the contract price shown in k>urus;rlq)h ti G. fhci?cs a 111 'AA'1?
lo I,f)lIh-1,1;oJ
? ' +?"'l'S (lf.lllt• h?f?'L'r(b? :3i1k1 liLL11dCl.''ui<I r?••lyii,in? in si?,ll'll It'CC hc?lh ?\j?, ??'?'1 (I
ix++tirk. ! l )
-1?•wm •nl 111'11 con P1 ? ,, `?
fllnds pripd,le In the builder outlw 1,1111 „I
loki-A 11cre
l '- -- -
25,714.69 No more than _ Mays alter the completion of tile roundution
87,150.12 Payment made prior to the delivery of (lye home unless otherwise specified here:N/A
11.00 No more than'_ clays after competition of the well anti septic system
0.011 Project subs(:utliMlly cunlplete
0,877-111- inai payment, wlth111 2 days after COmpleIion of the home per Conu•act sped ItC Ilion &
find inspection and :acceptance of the property by the Buyers.
6. CONTRACT PRICF.
i'he buyer(s) agree to pay a total price ot'$129,742.12 dollars to file builder for consuurlitxl of
the Illodolar home and site improvements, and the builder agrees to provide all the labor.
I1MICI idkS equipment, loots ind other services necessary to el'M the mUtlulMr home On tile s'ite.
\V'tilt the tulImN im exceptions: The Builder is not responsible for installing the well, sewir
System or CUmecting the home to either system. The builder is responsible for completion
fit' the home from the %ill plate up as specified on the Construction Allowance.
'I he Contract Price inCudCS Allowances for Construction costs, these allowances can not he
gtiMfMmteed as firm prices, due to items beyond the builder `s control Stteh as rock, depth of muter..
wc;nbcr or and tmcontrollubie CirCmmstMmce. Im the event that a CUn5trndlon item exceed, the
allo\?;uue as shown oil the C'011"MoCliun Allowance statement, the. buyer (s) :u•c responsible for
any costs over and Mbove the allowance shown on the "Construction Allowance ".
7. PAYNAFA'I'
t Ipon signing this conlruct the buyer(s) abrCe5 lu pay $ 10,000.110 dollars to the builder :IS a
deposit. The huyer(s) will make-interim payments, construction draws, these interim paylucnts
must includC (TIMS11)Is FIINDINC, or a minimum of 50',% of the price of Ow home. tulles,
lxior CxCcptioo is obtained and indiCaled in file draw schedule, it, sl1o1w11 on the lluildinl Mud
Specilicatioms Options List of this A,vicement, M Icast I bays prior to delivery 01* 111C 1110duhir
home to the hilihling site. "I hese interim payments will he mMdC in aeC(NdanCe with the draw
scheduic providcd h)• the mortgage company and apprOVed by 1110 builder.
The buyer(s) Mgrce to (take final payment, the balance owing within 3, two, 01'111C buyer(s)' ford
inspection and acceptance of the property. The huyer(s) is not entitled to possession until :Iltel
l in;ll pal nnitt. The buyer(s) agreeS not to occupy 01' to place personal item', in the hOtISC urlil
the htlitdef h.is been paid in full. The btiyer(s) agrel not to stake any moving arran`?.enlents until
l1wil sciticlitem ha, talon place, uki an occupancy permit, ifr:t)uircd. is obtained. Hit: buyer is
reyuirctl to obtain the occupancy permit if one is required.
The builder a.SsUMQS rto resiollsibi lily lur any items moved into the home prior to completion or
setllenn:nn fhr hunrrLs houi?l tt?+l place a1y_j?r5unal it?nls in the honer prior to cooll-ile(_ion_t±r
final srulemen(. Any daniwe caused by moving in will lie the huNer(s) respoasibilily.
K. Alllli'1'1ONAi, CONI)I"1'1ONS
l'h:It1195 OF F,XCAVATION:
1 N,? "wt. t-w:w:11i to of n-orwhrs includvd in this conir;u•t
?. No jack hmlm or. hydraulic hUQAcr, or other rock removal ctiuipnlenl or labor included in this
ctnllrtteL
3. 1'hi; contract in eludes: (-Check the correct paragraph)
[?]t tmuaclor will CU Ill plctc job to rough grade only. Fxcmaled nlatetiMI will he brlckIII lled and
muunlded. No finish landscaping, raking or s0eding included in this cuntracl.
[]('onlrutur will CoIitplele the finish grade and SCCLlirlg as Specified ill tile U01ISJULtdiOll
Allo\r:ulrc SLItc•nlemt. llli; final grade and ;ceding will riot include any Irecs, shruhbcry or
Iandsr:y,in??.
ALLOWANCF POLICY:
I he Ituildcr i, not rcsponsibic fur :my amount over (lie allowances such as that fur, but nol
linlitrd lo, wrll cost. s:m+tl nlnwld cost and driveway cost. Any charges exceeding the co,l shown
on the Conshitcuon Allimzince simemenl, referred to ill paragraph It, 3 are the buyer(s)
respomsihility. 'Iny amloumis exeecding the Construction Allowance are to be paid by the
bud cr(,) tt illlin 7 business days of the additional cost beings incurred by the builder.
RFAl. ESTATE FEF.ti:
Buyer is responsible lur n .uxl all Buyers' Agcatcy or real estate 11Jkerage Ices incurred fur the
purcltalse of the property anti the subsequent construclion.
I3ASFIVIENT EGRESS:
? "I he huycr(s) understand the basemcnt, which they have chosen, for this modular home has
no caress, except through the modular home. The Buyer(s) are aware that title to this lack of
egress Ilse hasentent is not mtcant ('or habitation. The buyer(s) understand that ,it nu time now nt.
in the future should the basement of this home he used lur habitation.
'I he huyer(s) have selected to include egress from the basement as dcseribed in the
i;'unstrtidwit Allowance.
ADDITIONAL ACRI%EMENTS & CONDITIONS:
Any additional conditions or agrecnents between the Bulkier and Buyer(s) are listed here: None
9. I ATF P.AYNIENTS
paynu•nrs not made in a timely fashion shall incur monthly interest at land simple interest
from the day file paytuent is due. This equates to I R`)S, per amino.
II'lhC hu)cr(sl Bill to pay the huiIder within 7 days ofttle date the paty+nent is title, the hnilder
may slop work and may keep the job idle until such time as all payments that are then due to the
builder tar paid in full. If the builder chooses not to slop \vork after a payment delay, this stout
not hr co mstruet I as a waIV cr of his rights to stop wort: i I' future payments are delayed.
All attorney Ices incurred by the builder to collect any stuns owed by the buyer(s) under this
a !rrenunl shall be paid by the buyer(s).
11). 11 RNIITS & SI(RVI?1"S
'I he huyer(s) shall obtain and furnish all necessary surveys describing the physical charaeleristics
ol'the propcrt), the location ofall utilities and the location of all easements to the buildine. Ihet
ire necessary to allow the hnilder to complelc his performance. 11' additional easements tire.
nrccssar)' to complete life \Wlk, the buyer(s) shall obtain these casements promptly.
I I' no soil report is availahlc, the hover(s) shall provide one at his(thcir) own expense, ifa soil
report is required. 'I he builder shall obtain building permits, licenses, building inspections autd
approvals rrgaired by local hov. I IiCSe permits will he at the I:oyer(s) expense, the buyer(s) will
pay all lees associated with these permits, licenses and inspections.
11',i covenant or architectural review conullittee requires the approval of the plans and
specifications, (lie buyer(s) shall he responsible fur obtaining these approvals and paying for any
lees connected with them.
'I he buycr(x) is resportsihle tiff locatitig and marking all property lilies anti marking atly setbacks
fur construction, prior to the. builder starting any construction. 'I lie buyer(s) agrees (lie builder
( or am ol, his subcontractors will not be held responsihle tin' wrongly located improvements or
construction on the premises. II'the buyer(s) tine not sure ofany property lines they should
obtain a survey. Buyer(s) agree to obtain this sta•vey al no expense to life builder.
11. CIIANCF ORDERS
The buyer(s) may order changes in the work tcilhin the terms ol'the contract, but only by if prior
WI ittcn order and agreement with the hnilder that states the changes to the contract, the amount
of anv :uldilional cost, and tfte additional number of flays to he added llk the contract completion
date. The btlV'er(s) understand NO ('I IANG1 may he made once the mauud'acturer has
seftu1luled the home liar production.
Any of the Ihuyeis may sip,n (he change order and that signature will he binding upon all of the
hovei:s.
lIle hover(s) hereby acres to make all retluests for change orders to the htlilder, and riot Io issue
instructions to, or otherwise necotinte liar additional or changed wort: specifications ??ith, the.
huilder's employees or subcontractors, Tile buyer(s) urtderstamds that any and all chanl1e orders
nm"t he in ttrilinLL and siOinrd by the hayer(s) tu)d the builder to he considered a valid change.
Any eltange order resultir i an additional cast must be paid for it Avance of the change being
completed.
12. INSURANCE. AND RUSK MANACEMENT
The builder shall obtain all workers' compensation, commercial general liability insurance and
comprehensive liability inswunce necessary, to pmtect the NdWer from claims for darimpes duc
to bodily injury, including (oath, and for damages to property that nmy arise oni of:uui during
operations under this Contrail.
The buyer(s) shall purchase hi5(their) own liability ittsurtuue including fire and casnaht
insurance to the fall insurable value of the house and shall name the huilcler as an additional
insured.
13. ACCF.SS'1'O "1'II{?. P{2OI'1;12'CY 9l'f[?
The buyer(s) shall have access to the property and die right to inspect the work in the presence of
the huiider.
If the huyer(s) enters the property during the course of construction without the permission of tile?
builder, he does (they do) so at his (their) own risk, :uul the buyer(s) hereby releases the huifdcr
and does hereby hold the builder harmless front any and all claims for injury or dtmlagC to
Iti%dwr? person or properly, and to the person or property orally person accompanying the
huyerls).
The buyer(s) agree not to schedule other work at flee site unless bujldcr's written consent is
00tainCd. Builder agrees not to withhold written consent unreasonably. Buyers' agree to
indrmnit'y builder tier any injury or damage caused by workmen performing other wort: under
?? buyer(s) direction. ??
14. INSPFC TION, ACCT?I''I'ANCE., FINAL PAYMENT AND FOSS ?SSION
At the final inspection, the huyer(s) will give the builder a signed and dated list that identifies
any alleged d6chwies A the quality of the work or materials. 'Me builder shall c wwO any
items oil the buyer(s)' list that are in the good frith judgment of drC builder, deliCient in ILL
i' quality ol'the wort: and 6 rnaIc'•ials according to the nuundlicuucr mandards. The buikbr ,hall
correct loose dcfeets wvilh in, reasunahle little.
I
yrtor rho defects have been corrected according to the manful umerN standard of mislrwkwi,
the huyer(s),hall sign a certilwate ofacceptance acknowledging that the dKets on the hnyer(a)
list leave heen Corrected.
(occupancy will he granted 10 the huyer(s) after the huyer(s) makes final inspection of the home, 1
and stakes final paynwiil. and if required after occupancy permit is issued.
15. REPRESENTATIONS AND WAIWANTIE.S
"This Agwonent contains the entire Agreement hetween the Parties and the terms of this
Ayr mwM are contractual wW not merely a recital. "this Agreement supercedes all previous
rrpresrnt: lions, tnderslandings, or agreements, oral m written, between the Pnrtic.ti with respect
to the subject matter hereof. No promise or inducentcat that is nut herein expressed has horn
made to nnl ol'the Parties and lhusC Parties do not rely upon ant' slatetnenl or representation
mato by any person unless herein.
All warranties are limited to the implied warranties of hahiwhihty and worl.manGke construction
and :It',' limiled to it period ofonc year from the date (11,111C date ol'the 1111,( inspection and final
payment. "I'his_(incited warranty is the only warranty provided by the nutmtf,Ctunr of the
nr.uutftCturcd home.
'this contact is valid fur 60 days from the date of sighing below, in the event that constuction
setlenwill does not klecur within this shay dtry period this contract becomes null and void. I he
con,truclion will 1101 he completed within the 60 days, however the construction settlement must
take place within 60 days to keep the contract valid. The prices agreed to are hascd on the
1111dei:sl,nding that eonstruction settfomextl will occur with in 60 days from the date ol'signing
this cuntract and c:ut not he gunranteed after the 60 day period.
16. DIsill JTF.S .-
Initial lore
Sluutld any disputes arise relative to the performance of this Agreement that the Parties can not
resolve, the dispute shall be referred to a single arbitrator selected by the huilder and acceptable
to the buyer. Should the Parties not agree, the dispute shcluld he Subject to arbitration under and
in accordance with the rules and reculations of the American Arbitration Association. All
attorney Ices that shall lie incurred in the resoluti(m of the dispute shall be the responsibility of
the party not prevailill" in the dispute.
17. '111F. COVF.RNINC LAW AND A(,SICNMGNT
I Iris agreement shall he construed, interpreted, and applied according to the law of the
Conutlomrealth of Penns) Ivania. This conu"act 5111111 1101. he assigned without writlrn CUtlsclll of
ail parties,
18. I?FFF.CTIVF DATE, AND SICNATURF.
This Agreement shall he effective on the date this Agreement is signed by both Parties.
We. Ow undersigned, have read, understood and agree to each of the provisions of this
A,-reemenl and ague to he ILTally hind hereby and further acknoMedtc receipt ol'a copy of This
Agrecr»ent.
13111L.L?l?: '
on hehalfol'Creek Vicw I lonles, Inc
I'itlc: Date: `-J v
13UNTR(S)
I?\': _4??;?,;v?z,? _ ?!- ?!'l:;-?-??- _ Dale:
Initial Ilere 5
CHANGE ORDER
The following changes are made to tht! A`1•cenient to Deliver and Assemble a Modular Home
dated 04-16-2064, between Creek View Homes Inc., the builder, and David L. & Rose Marie
Stoner, the buyer(s) of 1201 Clarmot;t Sireet, Carlisle, PA 17013:
III glace of the Burs and C .;ek View 1_Ininc;,_;rlc_e.-AablishiM.! a ioint checking account for llt.°
full amount ofIlie comracted price, less the si gniua deposit, dic I611(owi '1) j?a,ment schedulr'IS
acc Both L?arlics understand that pit !lIeiits nlllst he made in this manner to pn1 yeilt default
on the AGREEMENT TO DEL_ IVEI AND ASSEMBI-L'. A MODULAR HOME Signed anal
dated 4-16-2004: - - --
_ 25.714.69 l?or the exctvcition and the foundation lu hC h;?ici =t-''6-04.
'87,150.12 To be paid in certified funds or bank check 4 business clays prior to the delivery of
the home.
077.31 final payment, within 2 days after completion of the home per contract specification K
final inspection and acceptance of the property by the Buyers.
This Change Order shall be effective on the date it is signed by a representative ot•each party
We, the undersigned, have react, Understood and agree to the above changes to OUr Agreement to
Deliver and Assemble a Modular Home and understand the above charges must be paid prior to
I Mal settIC'Mellt and our occupancy of the home.
I?U1L[a'i:R
un behalf of Creek View I tomes, lnc
?-7q _ c
Title: ` ?'' --- Date: - ?- -
BUYER(S)
BY:c,?t vI iL-t_. Date: C) ?-(
By `7-'. Date: T ? -
IN WITNESS WI I IR1:OT', the undersigned has executed this instrument this
clay o f --,20
X X
X X
Notary Public
EXHIBIT "B"
CELyNGE ORDER
The following chanties are made to the. Ag,•ceMent to Deliver and Assemble a Modular Home
dated 04-16-20V`4. between Creek View Homes Inc., the builder. and David L. & Rose Marie
Stoner, the buyer(s) of 1201 Clarmont Street, Carlisle, PA 17013:
In place of the Buyers and Creek View .1 lorne; . Inc. establishing a ioint checking account for the
full amount of the contracted price, less the si nimg deposit, the Following payment schedule is
accepted. Both parties understand that payments must be made in this manner to prevent default
on the AGREENTENT TO DELIVER AND ASSEMBLE A MODULAR HOME. signed and
dated 4-16-2004:
a ' 25.714.69 For the excavation and the foundation to be paid 4-='6-04.
87,150.12 To be paid in certified funds or bank check 4 business days prior to the delivery of
the home.
6,877.31 Final payment, within 2 days after completion of the home per contract specification &
final inspection and acceptance of the property by the Buyers.
This Change Order shall be effective on the date it is signed by a. representative of each party
We, the undersigned, have read, understood and agree to the above changes to our Agreement to
Deliver and Assemble a Modular Home and understand the above charges must be paid prior to
final settlement and our occupancy of the home.
BUIL ER
By: on behalf of Creek View Homes, Inc
Title: C? Date:
BUYER(S)
By: Date: - 7yC? 4-1
By{:. Date: ..i/?>/c, y
IN WITNESS WHEREOF, the undersigned has executed this instrument this
day of , 20
X
X
Notary Public
EXHIBIT "C"
0 Anierican:lrbitratic3n:,kssociatiolI
t3lsparr Rrxv6trfima Ser;ricr-a bi?nrl,t?s?idr
AMERICAN ARBITRATION ASSOCIATION ARBITRATION RULES
(ENTER THE NAME OF THE APPLICABLE RULES)
Demand for Arbitration
MEDIATION. If you would like the AAA to contact the other parties and attempt to arrange mediation, please check this box.
There is no additional administrative a or this service.
Name of Respondent Name of Representative (if known)
David L. Stoner and Rose Marie Stoner Douglas G. Miller, Esquire
Address: Name of Firm (if applicable):
171 Boyer Road Irwin & McKnight
Representative's Address
60 West Pomfret Street
City State Zip Code City State Zip Code
Carlisle PA 17013 Carlisle PA 17013
Phone No. Fax No. Phone No. Fax No.
(717) 249-2353 (717) 249-6354
Email Address: Email Address:
The named claimant, a party to an arbitration agreement dated April 16, 2004 , which provides for arbitration under the
Arbitration Rules of the American Arbitration Association, hereby demands arbitration.
THE NATURE OF THE DISPUTE
Creek View Homes, Inc. performed construction of a modular home unit constructed on 171 Boyer Road, Monroe Township, Carlisle, Cumberland
County, Pennsylvania 17013 pursuant to a contract executed between the above-referenced parties on April 16, 2004.
Dollar Amount of Claim $8,252.17. Other Relief Sought: ® Attorneys Fees 19 Interest
Arbitration Costs ? Punitive/ Exemplary ? Other
AMOUNT OF FILING FEE ENCLOSED WITH THIS DEMAND (please refer to the fee schedule in the rules for the appropriate fee) $
PLEASE DESCRIBE APPROPRIATE QUALIFICATIONS FOR ARBITRATOR(S) TO BE APPOINTED TO HEAR THIS DISPUTE:
Modular Home/Construction Background
Hearing locale Pennsylvania (check one) D1 Requested by Claimant J4 Locale provision included in the contract
Estimated time needed for hearings overall: Type of Business: Claimant Modular Home Builder
hours or 1 days Respondent Customer
Is this a dispute between a business and a consumer? 9Yes a No
Does this dispute arise out of an employment relationship? ?Yes 9 No
if this dispute arises out of an employment relationship, what was/is the employee's annual wage range? Note: This question is required
California law. ?Less than $100,000 ? $100,000 - $250,000 ? Over $250,000
You are hereby notified that copies of our arbitration agreement and this demand are being filed with the American Arbitration
Association's Case Management Center, located in (check one) ? Atlanta, GA ? Dallas, TX R East Providence, RI
? Fresno, CA ? International Centre, NY, with a request that it commence administration of the arbitration. Under the rules, you
may file an answering statement within the timeframe specified in the rules, after notice from the AAA.
Signature (may be signed by a representative) Date: Name of Representative
l r
J.
( '? ;-r ?'?If r
Ll,
ark W. Allshouse, Esquire
Name f Claimant Name of Firm (if applicable)
Creek View Homes, Inc. Christian Lawyer Solutions
Address (to be used in connection with this case): Representative's Address:
P.O. Box 174 4833 Spring Road
City State Zip Code City State Zip Code
Sherman Dale PA 17090 Shermans Dale PA 17090
Phone No. Fax No. Phone No. Fax No.
(717) 582-7922 (717) 582-7944 (717) 582-4006 (717) 582-7476
Email Address: Email Address:
mark@christianlawyersolutions@comcast.net
To begin proceedings, please send two copies of this Demand and the Arbitration Agreement, along with the filing fee as provided for in
the Rules, to the AAA. Send the original Demand to the Respondent.
Please visit our website at wuw.adr.ore if you would like to file this case online. AAA Customer Service can he reached at 800-778-7879
EXHIBIT "D"
aaa236current.htm
Page 1 of 6
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SUPPLEMENTARY PROCEDURES FOR CONSUMER-RELATED DISPUTES
Effective September 15, 2005
Introduction
About the AAA
The AAA's Consumer Rules
Availability of Mediation
Administrative Fees
Arbitrator's Fees
Glossary of Terms
Claimant
Respondent
ADR Process
Arbitration
Desk Arbitration
Telephone Hearing
In Person Hearing
Mediation
Neutral
Case Manager
ADR Agreement
ADR Program
Independent ADR Institution
Supplementary Procedures for the Resolution of Consumer-Related Disputes
C-1. Agreement of Parties and Applicability
C-2. Initiation Under an Arbitration Agreement
C-3. Initiation Under a Submission
C-4. Appointment of Arbitrator
C-5. Proceedings on Documents ("Desk Arbitration")
C-6. Expedited Hearing Procedures
C-7. The Award
C-8. Administrative Fees and Arbitrator Fees'
Administrative Fees
Arbitrator Fees
Fees and Deposits to be Paid by the Consumer:
Fees and Deposits to be Paid by the Business:
INTRODUCTION
Millions of consumer purchases take place each year. Occasionally, these transactions lead to disagreements between consumers and businesses.
These disputes can be resolved by arbitration. Arbitration is usually faster and cheaper than going to court.
The AAA applies the Supplementary Procedures for Consumer-Related Disputes to arbitration clauses in agreements between individual consumers
and businesses where the business has a standardized, systematic application of arbitration clauses with customers and where the terms and
conditions of the purchase of standardized, consumable goods or services are non-negotiable or primarily non-negotiable in most or all of its terms.
conditions, features, or choices. The product or service must be for personal or household use. The AAA will have the discretion to apply or not to
apply the Supplementary Procedures and the parties will be able to bring any disputes concerning the application or non-application to the attention
of the arbitrator. Consumers are not prohibited from seeking relief in a small claims court for disputes or claims within the scope of its jurisdiction,
even in consumer arbitration cases filed by the business.
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. aaa23.6current.htm
About the AAA
Page 2 of 6
The American Arbitration Association (AAA) is a not-for-profit, private organization. We offer a broad range of conflict management services to
businesses, organizations and individuals. We also provide education, training and publications focused on ways of settling disputes out of court.
The AAA's Consumer Rules
The AAA has developed the Supplementary Procedures for Consumer-Related Disputes for consumers and businesses that want to have their
disagreements resolved by arbitrators. People throughout the world can make use of our services.
Availability of Mediation
Mediation is also available to help parties resolve their disputes. Mediations are handled under AAA's Commercial Mediation Procedures.
Administrative Fees
The Association charges a fee for its services under these rules. The costs to the consumer and business depend on the size and nature of the
claims. A fee schedule is included at the end of this Supplement. In certain cases, fees paid by the consumer are fully refundable if the dispute is
settled before the arbitrator takes any action.
Arbitrator's Fees
Arbitrators get paid for the time they spend resolving disputes. The arbitrator's fee depends on the type of proceeding that is used and the time it
takes. The parties make deposits as outlined in the fee schedule at the end of this Supplement. Unused deposits are refunded at the end of the case.
GLOSSARY OF TERMS
Claimant
A Claimant is the party who files the claim or starts the arbitration. Either the consumer or the business may be the Claimant.
Respondent
A Respondent is the party against whom the claim is filed. If a Respondent states a claim in arbitration, it is called a counterclaim. Either the
consumer or the business may be the Respondent.
ADR Process
An ADR (Alternative Dispute Resolution) Process is a method of resolving a dispute out of court. Mediation and Arbitration are the most widely used
ADR processes.
Arbitration
In arbitration, the parties submit disputes to an impartial person (the arbitrator) for a decision. Each party can present evidence to the arbitrator.
Arbitrators do not have to follow the Rules of Evidence used in court.
Arbitrators decide cases with written decisions or "awards." An award is usually binding on the parties. A court may enforce an arbitration award, but
the court's review of arbitration awards is limited.
Desk Arbitration
In a Desk Arbitration, the parties submit their arguments and evidence to the arbitrator in writing. The arbitrator then makes an award based only on
the documents. No hearing is held.
Telephone Hearing
In a Telephone Hearing, the parties have the opportunity to tell the arbitrator about their case during a conference call. Often this is done after the
parties have sent in documents for the arbitrator to review. A Telephone Hearing can be cheaper and easier than an In Person Hearing.
aaa236current.htm
In Person Hearing
Page 3 of 6
During an In Person Hearing, the parties and the arbitrator meet in a conference room or office and the parties present their evidence in a process
that is similar to going to court. However, an In Person Hearing is not as formal as going to court.
Mediation
In Mediation, an impartial person (the mediator) helps the parties try to settle their dispute by reaching an agreement together. A mediator's role is to
help the parties come to an agreement. A mediator does not arbitrate or decide the outcome.
Neutral
A Neutral is a word that is used to describe someone who is a mediator, arbitrator, or other independent, impartial person selected to serve as the
independent third party in an ADR process.
Case Manager
The Case Manager is the AAA's employee assigned to handle the administrative aspects of the case. He or she does not decide the case. He or she
only manages the case's administrative steps, such as exchanging documents, matching schedules, and setting up hearings. The Case Manager is
the parties' contact point for almost all aspects of the case outside of any hearings.
ADR Agreement
An ADR Agreement is an agreement between a business and a consumer to submit disputes to mediation, arbitration, or other ADR processes.
ADR Program
An ADR Program is any program or service set up or used by a business to resolve disputes out of court.
Independent ADR Institution
An Independent ADR Institution is an organization that provides independent and impartial administration of ADR programs for consumers and
businesses. The American Arbitration Association is an Independent ADR Institution.
SUPPLEMENTARY PROCEDURES FOR THE RESOLUTION OF CONSUMER-RELATED DISPUTES
C-1. Agreement of Parties and Applicability
(a) The Commercial Dispute Resolution Procedures and these Supplementary Procedures for Consumer-Related Disputes shall apply whenever the
American Arbitration Association (AAA) or its rules are used in an agreement between a consumer and a business where the business has a
standardized, systematic application of arbitration clauses with customers and where the terms and conditions of the purchase of standardized,
consumable goods or services are non-negotiable or primarily non-negotiable in most or all of its terms, conditions, features, or choices. The
product or service must be for personal or household use. The AAA will have the discretion to apply or not to apply the Supplementary
Procedures and the parties will be able to bring any disputes concerning the application or non-application to the attention of the arbitrator. The
AAA's most current rules will be used when the arbitration is started. If there is a difference between the Commercial Dispute Resolution
Procedures and the Supplementary Procedures, the Supplementary Procedures will be used. The Commercial Dispute Resolution Procedures
may be found on our Web site. They may also be obtained from the Case Manager.
(b) The Expedited Procedures will be used unless there are three arbitrators. In such cases, the Commercial Dispute Resolution Procedures shall
apply.
(c) The AAA may substitute another set of rules, such as the Real Estate or the Wireless Industry Arbitration Rules, for the Commercial Dispute
Resolution Procedures in some cases.
(d) Parties can still take their claims to a small claims court.
C-2. Initiation Under an Arbitration Agreement
(a) The filing party (the "claimant") must notify the other party (the "respondent"), in writing, that it wishes to arbitrate a dispute. This notification is
referred to as the "demand" for arbitration. The demand should:
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' briefly explain the dispute,
'list the names and addresses of the consumer and the business,
'specify the amount of money involved,
'state what the claimant wants.
The claimant must also send two copies of the demand to the AAA at the time it sends the demand to the respondent. When sending a demand
to the AAA, the claimant must attach a copy of the arbitration agreement from the consumer contract with the business. The claimant must also
send the appropriate administrative fees and deposits. A fee schedule can be found in Section C-8 at the end of this Supplement.
(b) The AAA shall confirm receipt of the demand to the parties.
(c) The respondent may answer the demand and may also file a counterclaim. The answer must be sent to the AAA within ten calendar days after the
AAA acknowledges receipt of claimant's demand. The answer must:
'be in writing,
'be sent, in duplicate, to the AAA,
' be sent to the claimant at the same time.
' If the respondent has a counterclaim, it must state the nature of the counterclaim, the amount involved, and the remedy sought.
(d) If no answer is filed within the.stated time, the AAA will assume that the respondent denies the claim.
(e) The respondent must also send the appropriate administrative fees and deposits. A fee schedule can be found in Section. C-8 at the end of this
Supplement. Payment is due ten calendar days after the AAA acknowledges receipt of claimant's demand.
C-3. Initiation Under a Submission
Where no agreement to arbitrate exists in the contract between the consumer and the business, the parties may agree to arbitrate a dispute. To begin
arbitration, the parties must send the AAA a submission agreement. The submission agreement must:
'be in writing,
'be signed by both parties,
' briefly explain the dispute,
'list the names and addresses of the consumer and the business,
'specify the amount of money involved,
' state the solution sought.
The parties should send two copies of the submission to the AAA. They must also send the administrative fees and deposits. A fee schedule can be
found in Section C-8 at the end of this Supplement.
C-4. Appointment of Arbitrator
Immediately after the filing of the submission or the answer, or after the deadline for filing the answer, the AAA will appoint an arbitrator. The parties
will have seven calendar days from the time the AAA notifies them, to submit any factual objections to that arbitrator's service.
C-5. Proceedings on Documents ("Desk Arbitration")
Where no claims or counterclaims exceed $10,000, the dispute shall be resolved by the submission of documents. Any party, however, may ask for a
hearing. The arbitrator may also decide that a hearing is necessary.
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Page 5 of 6
The arbitrator will establish a fair process for submitting the documents. Documents must be sent to the AAA. These will be forwarded to the
arbitrator.
C-e. Expedited Hearing Procedures
A party may request that the arbitrator hold a hearing. This hearing may be by telephone or in person. The hearing may occur even if the other party
does not attend. A request for a hearing should be made in writing within ten calendar days after the AAA acknowledges receipt of a claimant's
demand for arbitration. Requests received after that date will be allowed at the discretion of the arbitrator.
In a case where any party's claim exceeds $10,000, the arbitrator will conduct a hearing unless the parties agree not to have one.
Any hearings will be conducted in accordance with the Expedited Procedures of the Commercial Dispute Resolution Procedures. These procedures
may be found on our Web site. They may also be obtained from the Case Manager.
C-7. The Award
(a) Unless the parties agree otherwise, the arbitrator must make his or her award within fourteen calendar days from the date of the closing of the
hearing. For Desk Arbitrations, the arbitrator has fourteen calendar days from when the AAA sends the final documents to the arbitrator.
(b) Awards shall be in writing and shall be executed as required by law.
(c) In the award, the arbitrator should apply any identified pertinent contract terms, statutes, and legal precedents. The arbitrator may grant any
remedy, relief or outcome that the parties could have received in court. The award shall be final and binding. The award is subject to review in
accordance with applicable statutes governing arbitration awards.
C-8. Administrative Fees and Arbitrator Fees'
Administrative fees and arbitrator compensation deposits are due from the claimant at the time a case is filed. They are due from the respondent at
the time the answer is due. The amounts paid by the consumer and the business are set forth below.
`Pursuant to Section 1284.3 of the California Code of Civil Procedure, consumers with a gross monthly income of less than 300% of the
federal poverty guidelines are entitled to a waiver of arbitration fees and costs, exclusive of arbitrator fees. This law applies to all consumer
agreements subject to the California Arbitration Act, and to all consumer arbitrations conducted in California. If you believe that you meet
these requirements, you must submit to the AAA a declaration under of oath regarding your monthly income and the number of persons in
your household. Please contact the AAA's Western Case Management Center at 1-877-528-0879, if you have any questions regarding the
waiver of administrative fees. (Effective January 1, 2003)
Administrative Fees
Administrative fees are based on the size of the claim and counterclaim in a dispute. They are based only on the actual damages and not on any
additional damages, such as attorneys' fees or punitive damages. Portions of these fees are refundable pursuant to the Commercial Fee Schedule.
Arbitrator Fees
For cases in which no claim exceeds $75,000, arbitrators are paid based on the type of proceeding that is used. The parties make deposits as set
forth below. Any unused deposits are returned at the end of the case.
Desk Arbitration or Telephone Hearing $250 for service on the case
In Person Hearing $750 per day of hearing
For cases in which a claim or counterclaim exceeds $75,000, arbitrators are compensated at the rates set forth on their panel biographies.
Fees and Deposits to be Paid by the Consumer:
If the consumer's claim or counterclaim does not exceed $10,000, then the consumer is responsible for one-half the arbitrator's fees up to a maximum
of $125. This deposit is used to pay the arbitrator. It is refunded if not used.
If the consumer's claim or counterclaim is greater than $10,000, but does not exceed $75,000, then the consumer is responsible for one-half the
arbitrator's fees up to a maximum of $375. This deposit is used to pay the arbitrator. It is refunded if not used.
If the consumer's claim or counterclaim exceeds $75,000, or if the consumer's claim or counterclaim is non-monetary, then the consumer must pay an
aaa236current.htm
Page 6 of 6
Administrative Fee in accordance with the Commercial Fee Schedule. A portion of this fee is refundable pursuant to the Commercial Fee Schedule.
The consumer must also deposit one-half of the arbitrator's compensation. This deposit is used to pay the arbitrator. This deposit is refunded if not
used. The arbitrator's compensation rate is set forth on the panel biography provided to the parties when the arbitrator is appointed,
Fees and Deposits to be Paid by the Business:
Administrative Fees:
It neither party's claim or counterclaim exceeds $10,000, the business must pay $750 and a Case Service Fee of $200 if a hearing is held. A portion
of this fee is refundable pursuant to the Commercial Fee Schedule.
If either party's claim or counterclaim exceeds $10,000, but does not exceed $75,000, the business must pay $950 and a Case Service Fee of $300 if
a hearing is held. A portion of this fee is refundable pursuant to the Commercial Fee Schedule.
If the business's claim or counterclaim exceeds $75,000 or if the business's claim or counterclaim is non-monetary, the business must pay an
Administrative Fee in accordance with the Commercial Fee Schedule. A portion of this fee is refundable pursuant to the Commercial Fee Schedule.
Arbitrator Fees:
The business must pay for all arbitrator compensation deposits beyond those that are the responsibility of the consumer. These deposits are
refunded if not used.
If a party fails to pay its fees and share of the administrative fee or the arbitrator compensation deposit, the other party may advance such funds. The
arbitrator may assess these costs in the award.-
For more information please contact our customer service department at 1-800-778-7879
Rules, forms, procedures and guides are subject to periodic change and updating.
AAA236
02006 American Arbitration Association. All Rights Reserved. Privacy Policy Tarns of Use
EXHIBIT "E"
consumer_protocol.html
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Consumer Due Process Protocol
Statement of Principles of the National Consumer Disputes Advisory Committee
Statement of Principles
Introduction: Genesis of the Advisory Committee
Scope of the Consumer Due Process
Glossary of Terms
Major Standards and Sources
Principle 1. Fundamentally-Fair Process
Principle 2. Access to Information Regarding ADR Program
Principle 3. Independent and Impartial Neutral; Independent Administration
Principle 4. Quality and Competence of Neutrals
Principle 5. Small Claims
Principle 6. Reasonable Cost
Principle 7. Reasonably Convenient Location
Principle 8. Reasonable Time Limits
Principle 9. Right to Representation
Principle 10. Mediation
Principle 11. Agreements to Arbitrate
Principle 12. Arbitration Hearings
Principle 13. Access to Information
Principle 14. Arbitral Remedies
Principle 15. Arbitration Awards
LIST OF SIGNATORIES
STATEMENT OF PRINCIPLES
PRINCIPLE 1. FUNDAMENTALLY-FAIR PROCESS
All parties are entitled to a fundamentally-fair ADR process. As embodiments of fundamental fairness, these Principles should be observed in
structuring ADR Programs.
PRINCIPLE 2. ACCESS TO INFORMATION REGARDING ADR PROGRAM
Providers of goods or services should undertake reasonable measures to provide Consumers with full and accurate information regarding Consumer
ADR Programs. At the time the Consumer contracts for goods or services, such measures should include (1) clear and adequate notice regarding the
ADR provisions, including a statement indicating whether participation in the ADR Program is mandatory or optional, and (2) reasonable means by
which Consumers may obtain additional information regarding the ADR Program. After a dispute arises, Consumers should have access to all
information necessary for effective participation in ADR.
PRINCIPLE 3. INDEPENDENT AND IMPARTIAL NEUTRAL; INDEPENDENT ADMINISTRATION
1. Independent and Impartial Neutral. All parties are entitled to a Neutral who is independent and impartial.
2. Independent Administration. If participation in mediation or arbitration is mandatory, the procedure should be administered by an
independent ADR Institution. Administrative services should include the maintenance of a panel of prospective Neutrals, facilitation of Neutral
selection, collection and distribution of Neutral's fees and expenses, oversight and implementation of ADR rules and procedures, and
monitoring of Neutral qualifications, performance, and adherence to pertinent rules, procedures and ethical standards.
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3. Standards for Neutrals. The Independent ADR Institution should make reasonable efforts to ensure that Neutrals understand and conform
to pertinent ADR rules, procedures and ethical standards.
4. Selection of Neutrals. The Consumer and Provider should have an equal voice in the selection of Neutrals in connection with a specific
dispute.
5. Disclosure and Disqualification. Beginning at the time of appointment, Neutrals should be required to disclose to the Independent ADR
Institution any circumstance likely to affect impartiality, including any bias or financial or personal interest which might affect the result of the
ADR proceeding, or any past or present relationship or experience with the parties or their representatives, including past ADR experiences.
The Independent ADR Institution should communicate any such information to the parties and other Neutrals, if any. Upon objection of a
party to continued service of the Neutral, the Independent ADR Institution should determine whether the Neutral should be disqualified and
should inform the parties of its decision. The disclosure obligation of the Neutral and procedure for disqualification should continue
throughout the period of appointment.
PRINCIPLE 4. OUALITY AND COMPETENCE OF NEUTRALS
All parties are entitled to competent, qualified Neutrals. Independent ADR Institutions are responsible for establishing and maintaining standards for
Neutrals in ADR Programs they administer.
PRINCIPLE 5. SMALL CLAIMS
ConsumerADR Agreements should make it clear that all parties retain the right to seek relief in a small claims court for disputes or claims within the
scope of its jurisdiction.
PRINCIPLE 6. REASONABLE COST
1. Reasonable Cost. Providers of goods and services should develop ADR programs which entail reasonable cost to Consumers based on the
circumstances of the dispute, including, among other things, the size and nature of the claim, the nature of goods or services provided, and
the ability of the Consumer to pay. In some cases, this may require the Provider to subsidize the process.
2. Handling of Payment. In the interest of ensuring fair and independent Neutrals, the making of fee arrangements and the payment of fees
should be administered on a rational, equitable and consistent basis by the Independent ADR Institution.
PRINCIPLE 7. REASONABLY CONVENIENT LOCATION
In the case of face-to-face proceedings, the proceedings should be conducted at a location which is reasonably convenient to both parties with due
consideration of their ability to travel and other pertinent circumstances. If the parties are unable to agree on a location, the determination should be
made by the Independent ADR Institution or by the Neutral.
PRINCIPLE 8. REASONABLE TIME LIMITS
ADR proceedings should occur within a reasonable time, without undue delay. The rules governing ADR should establish specific reasonable time
periods for each step in the ADR process and, where necessary, set forth default procedures in the event a party fails to participate in the process
alter reasonable notice.
PRINCIPLE S. RIGHT TO REPRESENTATION
All parties participating in processes in ADR Programs have the right, at their own expense, to be represented by a spokesperson of their own
choosing. The ADR rules and procedures should so specify.
PRINCIPLE 10. MEDIATION
The use of mediation is strongly encouraged as an informal means of assisting parties in resolving their own disputes.
PRINCIPLE 11. AGREEMENTS TO ARBITRATE
Consumers should be given:
a. clear and adequate notice of the arbitration provision and its consequences, including a statement of its mandatory or optional
character,•
b. reasonable access to information regarding the arbitration process, including basic distinctions between arbitration and court
proceedings, related costs, and advice as to where they may obtain more complete information regarding arbitration procedures and
arbitrator rosters;
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notice of the option to make use of applicable small claims court procedures as an alternative to binding arbitration in appropriate
cases; and,
a clear statement of the means by which the Consumer may exercise the option (if any) to submit disputes to arbitration or to court
process.
PRINCIPLE 12. ARBITRATION HEARINGS
1. Fundamentally-Fair Hearing. All parties are entitled to a fundamentally-fair arbitration hearing. This requires adequate notice of hearings
and an opportunity to be heard and to present relevant evidence to impartial decision-makers. In some cases, such as some small claims,
the requirement of fundamental fairness may be met by hearings conducted by electronic or telephonic means or by a submission of
documents. However, the Neutral should have discretionary authority to require a face-to-face hearing upon the request of a party.
2. Confidentiality in Arbitration. Consistent with general expectations of privacy in arbitration hearings, the arbitrator should make reasonable
efforts to maintain the privacy of the hearing to the extent permitted by applicable law. The arbitrator should also carefully consider claims of
privilege and confidentiality when addressing evidentiary issues.
PRINCIPLE 13. ACCESS TO INFORMATION
No party should ever be denied the right to a fundamentally-fair process due to an inability to obtain information material to a dispute. Consumer ADR
agreements which provide for binding arbitration should establish procedures for arbitrator-supervised exchange of information prior to arbitration,
bearing in mind the expedited nature of arbitration.
PRINCIPLE 14. ARBITRAL REMEDIES
The arbitrator should be empowered to grant whatever relief would be available in court under law or in equity.
PRINCIPLE 15. ARBITRATION AWARDS
Final and Binding Award; Limited Scope of Review. If provided in the agreement to arbitrate, the arbitrator's award should be final and
binding, but subject to review in accordance with applicable statutes governing arbitration awards.
Standards to Guide Arbitrator Decision-Making. In making the award, the arbitrator should apply any identified, pertinent contract terms,
statutes and legal precedents.
3. Explanation of Award. At the timely request of either party, the arbitrator should provide a brief written explanation of the basis for the
award. To facilitate such requests, the arbitrator should discuss the matter with the parties prior to the arbitration hearing.
INTRODUCTION: GENESIS OF THE ADVISORY COMMITTEE
Recent years have seen a pronounced trend toward incorporation of out-of-court conflict resolution processes in standardized agreements presented
to consumers of goods and services. Some of these processes (such as mediation and non-binding evaluation) involve third party intervention in
settlement negotiations; others involve adjudication (binding arbitration). Such processes have the potential to be of significant value in making
dispute resolution quicker, less costly, and more satisfying. I
Yet because consumer contracts often do not involve arm's length negotiation of terms, and frequently consist of boilerplate language presented on a
take-it-or-leave it basis by suppliers of goods or services, there are legitimate concerns regarding the fairness of consumer conflict resolution
mechanisms required by suppliers. This is particularly true in the realm of binding arbitration, where the courts are displaced by private adjudication
systems. In such cases, consumers are often unaware of their procedural rights and obligations until the realities of out-of-court arbitration are
revealed to them after disputes have arisen. 2 While the results may be entirely satisfactory, they may also fall short of consumers' reasonable
expectations of fairness 3 and have a significant impact on consumers' substantive rights and remedies. 4
The use of mediation and other forms of alternative dispute resolution (ADR) by various state and federal courts has also raised concerns regarding
quality, effectiveness and fairness. The response has been a number of national, state and local initiatives to establish standards for the guidance
and information of courts. Until now, however, there has been no comparable national effort in the private consumer sphere.
In the spring of 1997, the American Arbitration Association (AAA) announced the establishment of a National Consumer Disputes Advisory
Committee. The stated mission of the Advisory Committee is:
To bring together a broad, diverse, representative national advisory committee to advise the American Arbitration Association in
the development of standards and procedures for the equitable resolution of consumer disputes.
In light of its stated mission, the Advisory Committee's recommendations are likely to have a direct impact on the development of rules, procedures
and policies for the resolution of consumer disputes under the auspices of the AAA.
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The Advisory Committee's recommendations may also have a significant impact in the broader realm of consumer ADR. A Statement of Principles
which is perceived as a broadly-based consensus regarding minimum requirements for mediation and arbitration programs for consumers of goods
and services may influence the evolution of consumer rules generally and the development of state and federal laws governing consumer arbitration
agreements. The standards may affect the drafting of statutes and influence judicial opinions addressing the enforceability of arbitration agreements
pursuant to existing state or federal law. 5
1. See, e.g. , CPR Institute for Dispute Resolution, ADR Cost Savings & Benefit Studies (Catherine Cronin-Harris, ed. 1994) (summarizing some of
the research findings on the relative advantages ADR may offer). Se also, e.g. , Madden v. Kaiser Foundation Hosp. , 17 Cal. 3d 699, 711, 552 P.2d
1178, 1186 (1976) ("The speed and economy of arbitration, in contrast to the expense and delay of a jury trial, could prove helpful to all parties....")
2. The arbitration agreement may be included in the "fine print" in a brochure of terms and conditions inside a box of goods. See, e.g. , Hill v.
Gateway2000, Inc. , 105 F.3d 1147 (7th Cir. 1997) (Customers agreed to computer company's contract terms, including arbitration agreement, by
failing to return merchandise within 30 days). See Age of Compelled Arbitration, 1997, Wis. L. Rev33, 40-53 (Offering a "cautionary tale" regarding
employment arbitration agreement.)
3. See Mark E. Budnitz, Arbitration of Disputes Between Consumers and Financial Institutions: A Serious Threat to Consumer Protection , 10 Ohio St.
J. On Disp. Res. 267 (1995) (discussing procedural limitations of arbitration in treating consumer disputes with banks and lenders); Schwartz, supra
note 2 (discussing issues relating to adhesion contracts involving employees and consumers); Jean R. Sternlight, Rethinking the Constitutionality of
the Supreme Courts Preference for Binding Arbitration: A Fresh Assessment of Jury Trial, Separation of Powers, and Due Process Concerns , 72
Tuiane L. Rev. 1 (1997) (discussing due process concerns with binding arbitration under employment and consumer contracts). See, e.g., Engalla V.
Permanente Med. Grp. , 938 P.2d 903 (Cal. 1997) (medical group may not compel arbitration where it administers own arbitration program,
fraudulently misrepresents speed of arbitrator selection process, and the forces delays); Broemmer V. Abortion Serv. of Phoenix, 840 P.2d 1013 (Az.
1992) (refusing to enforce agreement in "adhesion contract" where drafter inserted potentially self-serving term requiring sole arbitrator of medical
malpractice claims to be licensed medical doctor).
4. See Schwartz, supra note 2, at 60-61 (discussing perceptions regarding relative damages awards in court and in arbitration), 64-66 (summarizing
some statistics on arbitration awards). See also William W. Park, When and Why Arbitration Matters, in The Commercial Way to Justice 73, 75 (G.M.
Beresfort Hartwell ed., 1997) (" Who interprets an...agreement will frequently be more significant than what the applicable law says about the
agreement....").
5. See, e.g., Cole v. Burns International Security Services, 105 F.3d 1465 (D.C.Cir. 1997) (Citing Due Process Protocol for Employment Disputes).
The consensus-based approach of the broadly constituted group reflects the "public interest" model espoused by Professor Speidel. See Richard E.
Speidel, Contract Theory and Securities Arbitration: Whither Consent?, 62 Brook. L. Rev. 1335 (1996).
SCOPE OF THE CONSUMER DUE PROCESS PROTOCOL
The Consumer Due Process Protocol (Protocol) was developed to address the wide range of consumer transactions those involving the purchase or
lease of goods or services for personal, family or household use. These include, among other things, transactions involving: banking, credit cards,
home loans and other financial services; health care services; brokerage services; home construction and improvements; insurance; communications;
and the purchase and lease of motor vehicles and other personal property.
Across this broad spectrum of consumer transactions, the Protocol applies to all possible conflicts from small claims to complex disputes. In light of
these realities, the Advisory Committee sought to develop principles which would establish clear benchmarks for conflict resolution processes
involving consumers, while recognizing that a process appropriate in one context may be inappropriate in another. Therefore, the Protocol embodies
flexible standards which permit consideration of specific circumstances.
In some cases, the AAA is developing or has developed special dispute resolution policies and procedures governing particular transactional
systems. A recent example is its current initiative with respect to ADR in contracts for health care services. Where the general principles set forth in
this Protocol conflict with more specific standards developed under the auspices of the AAA or some other independent organization with relatively
broad participation by affected parties, the latter should govern.
There are other transactions that share many of the features of consumer transactions, such as those involving small businesses and individual
employment contracts. While the Protocol was not developed for specific application to such other transactions, there may be circumstances in which
the Protocol might be applied by analogy to ADR in those venues. The Principles articulated here are likely to have an impact on minimum standards
of due process for other ADR systems involving persons of disparate bargaining power.
Each section of this document is devoted to treatment of a discrete topic concerning consumer ADR. It begins with a basic Principle that embodies
the fundamental reasonable expectation of consumers as defined by the Advisory Committee. Each Principle is accompanied by Reporter's
Comments that explain the rationale of the Advisory Committee in the context of other emerging standards. In addition, some Principles are
supplemented by Practical Suggestions for putting the Principles into practice.
The specific mention of mediation and binding arbitration reflects the current emphasis on these processes in consumer conflict resolution. The
Advisory Committee recognizes that a number of other approaches are being employed to resolve commercial and consumer disputes, and
encourages their use in accordance with the spirit of the Protocol.
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The signatories to this Protocol were designated by their respective organizations, but the Protocol reflects their personal views and should not be
construed as representing the policy of the designating organizations. Although the following Principles reflect a remarkable degree of consensus,
achieved during the course of several meetings of the entire Advisory Committee, subcommittee deliberations, exchanges of numerous memoranda
and of five drafts of the Protocol, Advisory Committee members at times accepted compromise in the interest of arriving at a common ground. As was
the case with the task force which developed the Employment Due Process Protocol, opinions regarding the appropriateness of binding pre-dispute
arbitration agreements in consumer contracts were never fully reconciled. Like that group, however, the Advisory Committee was able to address
standards for ADR processes within the given context.
GLOSSARY OF TERMS
Consumer
Consumer refers to an individual who purchases or leases goods or services, or contracts to purchase or lease goods or services, intended primarily
for personal, family or household use.
Provider
Provider refers to a seller or lessor of goods or services to Consumers for personal, family or household use.
ADR Process
An ADR (Alternative Dispute Resolution) Process is a method for out-of-court resolution of conflict through the intervention of third parties. Mediation
and arbitration are two widely used ADR processes.
Mediation
Mediation refers to a range of processes in which an impartial person helps parties to a dispute to communicate and to make voluntary, informed
choices in an effort to resolve their dispute. A mediator, unlike an arbitrator, does not issue a decision regarding the merits of the dispute, but instead
facilitates a dialogue between the parties with the view of helping them arrive at a mutually agreeable settlement.
Arbitration
Arbitration is a process in which parties submit disputes to a neutral third person or persons for a decision on the merits. Each party has an
opportunity to present evidence to the arbitrator(s) in writing or through witnesses. Arbitration proceedings tend to be more informal than court
proceedings and adherence to judicial rules of evidence is not usually required. Arbitrators decide cases by issuing written decisions or "awards." An
award may or may not be binding on the parties, depending on the agreement to arbitrate. A "binding" arbitration award may be enforced as a'court
judgment under the terms of federal or state statutes, but judicial review of arbitration awards is limited.
Neutral
A Neutral is a mediator, arbitrator, or other independent, impartial third party selected to intervene in a Consumer-Provider dispute.
.ADR Agreement
An ADR Agreement is an agreement between a Provider and a Consumer to submit disputes to mediation, arbitration, or other ADR Processes. As
used in this Statement, the term includes provisions (sometimes incorporated by reference) in standard contracts furnished by Providers which signify
the assent of the Consumer and Provider to such processes (although the assent may only be the "generalized assent" typically given by Consumers
to standard terms).
ADR Program
An ADR Program is any program or service established by or utilized by a Provider of goods and services for out-of-court resolution of Consumer
disputes. The term includes ADR rules and procedures and implementation of administrative structures.
Independent ADR Institution
An Independent ADR Institution is an organization that provides independent and impartial administration of ADR Programs for Consumers and
Providers, including, but not limited to, development and administration of ADR policies and procedures and the training and appointment of Neutrals.
MAJOR STANDARDS AND SOURCES
The Reporter's Comments accompanying these Principles cite a number of existing standards and sources relied upon by the Advisory Committee.
The more frequently cited standards and sources are set forth below by their full title as well as the abbreviated title that appears in the Comments.
American Arbitration Association, Commercial Arbitration Rules, July 1, 1996 (AAA Commercial Rules)
American Arbitration Association, Construction Industry Dispute Resolution Procedures, Oct. 15, 1997 (AAA Construction Procedures)
American Arbitration Association, Wireless Industry Arbitration Rules, July 15, 1997 (AAA Wireless Rules)
American Arbitration Association & American Bar Association, Code of Ethics for Arbitrators in Commercial Disputes (1977) (Code of Ethics for
Arbitrators)
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Center for Dispute Settlement, Institute of Judicial Admin., Standards for Court-Connected Mediation Programs (Standards for Court-Connected
Programs)
Council of Better Business Bureaus, Inc., Arbitration (Binding) (BBB Arbitration Rules)
CPR-Georgetown Commission on Ethics and Standards in ADR Working Group on Provider Organizations, Principles for ADR Provider Organizations
(Draft of April 4, 1998) (Principles for ADR Provider Organizations)
Federal Arbitration Act, 9 U.S.C. " 1-16 (as amended and in effect July 1, 1992) (Federal Arbitration Act)
Blue-Ribbon Advisory Panel on Kaiser Permanente Arbitration, The Kaiser Permanente Arbitration System: A Review and Recommendations for
Improvement 1 (1998) (Kaiser Permanente Review and Recommendations)
Joint Committee (American Arbitration Association, American Bar Association and Society of Professionals in Dispute Resolution) on Standards of
Conduct, Standards of Conduct for Mediators (1994) (Joint Standards for Mediators)
Society of Professionals in Dispute Resolution (SPIDR) Commission on Qualifications, Ensuring Competence and Quality in Dispute Resolution
Practice (Draft Report 1994)(SPIDR Report on Qualifications)
Society of Professionals in Dispute Resolution (SPIDR) Law and Public Policy Committee, Mandated Participation and Settlement Coercion: Dispute
Resolution as It Relates to the Courts (1991) (SPIDR Report on Court-Mandated ADR)
Society of Professionals in Dispute Resolution (SPIDR) Commission on Qualifications, Principles Concerning Qualifications (1989) (SPIDR Principles)
Task Force on Alternative Dispute Resolution in Employment, A Due Process Protocol for Mediation and Arbitration of Statutory Disputes Arising Out
of the Employment Relationship (1995) (Employment Due Process Protocol)
Uniform Arbitration Act, 7 U.A.A. 1 (1997) (Uniform Arbitration Act)
PRINCIPLE 1. FUNDAMENTALLY-FAIR PROCESS
Alt parties are entitled to a fundamentally-fair ADR process. As embodiments of fundamental fairness, these Principles should be observed
In structuring ADR Programs.
Reporter's Comments
Users of ADR are entitled to a process that is fundamentally fair. Emerging standards governing consensual and court-connected ADR programs
reflect pervasive concerns with fair process. See, e.g., III Ian R. Macneil, Richard E. Speidel, & Thomas J. Stipanowich, Federal Arbitration Law:
Agreements, Awards & Remedies Under the Federal Arbitration Act'32.2.1 (1994) [hereinafter Federal Arbitration Law] (noting "universal agreement'
that arbitrators must provide parties with fundamentally-fair hearing). See also Kaiser Permanente Review and Recommendations f ("As the sponsor
of a mandatory system of arbitration, Kaiser Permanente must assure a fair system to their members, physicians and staff.")
Where conflict resolution processes are defined by a written contract, that writing is often viewed by courts as the primary indicator of the "procedural
fairness' for which the parties bargained. As the Advisory Committee recognized, however, ADR agreements in most Consumer contracts are "take-it-
or-leave-it" contracts which are not products of negotiation by Consumers. See David S. Schwartz, Enforcing Small Print to Protect Big Business:
Employee and Consumer Rights Claims in an Age of Compelled Arbitration, 1997 Wis. L. Rev. 33, 55-60 (discussing adhesion dimension of pre-
dispute arbitration agreements in standardized contracts); Kaiser Permanente Review and Recommendations 28 (noting that many members of a
major HMO have no realistic alternative for medical care). It is possible, therefore, that contracts to which they have generally assented contain ADR
Agreements which fall so far short of Consumers' reasonable expectations that they would not have entered into the agreement had they been aware
of the provisions. Thus, although these Principles attempt to enhance the likelihood that Consumers will have specific knowledge of ADR provisions at
the time of contracting, the Advisory Committee also believed it necessary to describe a baseline of reasonable expectations for ADR in Consumer
transactions. These Principles identify specific minimum due process standards which embody the concept of fundamental fairness, including:
informed consent; impartial and unbiased Neutrals; independent administration of ADR; qualified Neutrals; access to small claims court; reasonable
costs (including, where appropriate, subsidized Provider-mandated procedures); convenient hearing locations; reasonable time limits; adequate
representation; fair hearing procedures; access to sufficient information; confidentiality; availability of court remedies; application of legal principle and
precedent by arbitrators; and the option to receive a statement of reasons for arbitration awards.
Where provisions in a standardized pre-dispute arbitration agreement fail to meet Consumers' reasonable expectations, there is authority for the
principle that courts may properly refuse to enforce the arbitration agreement in whole or in part. See Restatement (Second) of Contracts' 211 (1981);
Broemmer v. Abortion Services of Phoenix, Ltd., 173 Ariz. 148, 840 P.2d 1013 (1992) (standardized arbitration agreement was unenforceable where
its terms fell beyond patient's reasonable expectations); Graham v. Scissor-Tail, Inc., 623 P.2d 165 (Cal. 1981)(arbitration clauses in adhesion
contracts are unenforceable if they are contrary to the reasonable expectations of parties or unconscionable). Cf. Cole v. Burns International Security
Services, 105 F.3d 1465 (D.C. Cir. 1997)(setting forth minimum due process standards for judicial enforcement of arbitration agreement in the
context of a statutory employment discrimination claim where the employee was required to enter into the agreement as a condition of employment).
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Procedural fairness in Consumer arbitration agreements may also be policed under other principles. See, e.g., Stirlen v. Supercuts , 51 Cal. App. 4
Supp. 1519, 60 Cal. Rptr.2d 138 (1997)(finding remedial limits in "adhesive" employment agreement unconscionable); Engalla v. Permanente Med.
Grp., 938 P.2d 903 (Cal. 1997) (arbitration agreement was unenforceable if there was substantial delay in arbitrator selection contrary to consumer's
reasonable, fraudulently induced, contractual expectations).
Because the Principles in this Protocol represent a fundamental standard of fairness, waiver of any of these Principles in a pre-dispute agreement will
naturally be subject to scrutiny as to conformity with the reasonable expectations of the parties and other judicial standards governing the
enforceability of such contracts. Assuming they have sufficient specific knowledge and understanding of the rights they are waiving, however,
Consumers may waive compliance with these Principles after a dispute has arisen.
PRINCIPLE 2. ACCESS TO INFORMATION REGARDING ADR PROGRAM
Providers of goods or services should undertake reasonable measures to provide Consumers with full and accurate information regarding
Consumer ADR Programs. At the time the Consumer contracts for goods or services, such measures should include (1) clear and
adequate notice regarding the ADR provisions, including a statement indicating whether participation in the ADR Program is mandatory or
optional, and (2) reasonable means by which Consumers may obtain additional information regarding the ADR Program. After a dispute
arises, Consumers should have access to all Information necessary for effective participation in ADR.
Reporter's Comments
See SPIDR Report on Qualifications at 9 ("Consumers are entitled to know what tasks the neutral...may perform and what tasks they are expected to
perform in the course of a particular dispute resolution service.") Cf. SPIDR Principles at 6-7 ("It is the responsibility of...private programs offering
dispute resolution services to define clearly the services they provide...[and provide information about the program and Neutrals to the parties.]");
Kaiser Permanente Review and Recommendations 28 (provider of medical services has duty to provide users with "enough information and facts to
allow them to understand the actual operation of the arbitration system"); Principles for ADR Provider Organizations 2. At a minimum, Consumers
should be provided with (or have prompt access to) written information to explain the process. This should include general information describing
each ADR process used and its distinctive features, including:
*the nature and purpose of the process, including the scope of ADR provisions;
*an indication of whether or not the Consumer has a choice regarding use of the process;
*the role of parties and attorneys, if any;
*procedures for selection of Neutrals;
*rules of conduct for Neutrals, and complaint procedures;
*fees and expenses;
`information regarding ADR Program operation, including locations, times of operation, and case processing procedures;
*the availability of special services for non-English speakers, and persons with disabilities; and,
*the availability of alternatives to ADR, including small claims court.
See, e.g., BBB Arbitration Rules (defining arbitration and the roles of various participants; providing "checklist" for Consumers preparing for
arbitration; setting forth procedural rules). Cf. Standards for Court-Connected Programs' 3.2.b. (listing information which courts sponsoring mediation
should provide to program users). See also SPIDR Principles at 6-7 (listing information which private programs should offer to parties regarding the
program and participating Neutrals). Consumers should also be able to obtain a copy of pertinent rules and procedures. In the case of binding
arbitration provisions, there should also be a straightforward explanation of the differences between arbitration and court process. See Principle 11
"Agreements to Arbitrate." Although the Provider of goods or services is charged with the responsibility for making certain that Consumers have
access to appropriate information regarding ADR, the Independent ADR Institution has an important role in this area. The Independent ADR
Institution must be prepared to communicate to the parties all information necessary for effective use of the ADR process(es), particularly after a
dispute arises.
All materials should be prepared in plain straightforward language. As a rule, such information should be in the same language as the principal
contract for goods or services. See, e.g., N. Y. Pers. Prop. Law' 427 (McKinney 1997). See also Standards for Court-Connected Programs' 3.2.b.,
Commentary, at 3-4 (If a significant percentage of the population served is monolingual in a particular language, the material should be available in
that language.)
Practical Suggestions
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An example of a creative approach to providing information about Consumer ADR is provided by a major university medical center's Health Care
Dispute Resolution Program. The medical center provides prospective patients with a written explanation of mediation and arbitration procedures for
resolution of health care-related disputes one month before they visit the center to complete the remaining paperwork. As the written materials
explain, the program is voluntary; patients are not required to opt for the procedures as a condition to receiving treatment. Patients may contact the
center for additional information regarding the processes.
For purposes of allowing Consumers access to information about dispute resolution programs, the AAA makes available an 800 customer service
telephone number. In addition, the AAA, like some other Independent ADR Institutions, also has a World Wide Web site; it posts its rules and an
explanation of its mediation and arbitration procedures on the Web site.
A panel proposing reforms to a major HMO-sponsored arbitration system recommended the creation of an "ombudsperson program to assist
members in navigating the system of dispute resolution." Kaiser Permanente Review and Recommendations 2.43.
PRINCIPLE 3. INDEPENDENT AND IMPARTIAL NEUTRAL; INDEPENDENT ADMINISTRATION
1. Independent and Impartial Neutral. All parties are entitled to a Neutral who is independent and impartial.
2. Independent Administration. if participation in mediation or arbitration is mandatory, the procedure should be administered by an
Independent ADR Institution. Administrative services should include the maintenance of a panel of prospective Neutrals, facilitation of
Neutral selection, collection and distribution of Neutral's fees and expenses, oversight and implementation of ADR rules and procedures,
and monitoring of Neutral qualifications, performance, and adherence to pertinent rules, procedures and ethical standards.
3. Standards for Neutrals. The Independent ADR Institution should make reasonable efforts to ensure that Neutrals understand and
conform to pertinent ADR rules, procedures and ethical standards.
4. Selection of Neutrals. The Consumer and Provider should have an equal voice in the selection of Neutrals in connection with a specific
dispute.
5. Disclosure and Disqualification. Beginning at the time of appointment, Neutrals should be required to disclose to the Independent ADR
Institution any circumstance likely to affect Impartiality, including any bias or financial or personal interest which might affect the result of
the ADR proceeding, or any past or present relationship or experience with the parties or their representatives, including past ADR
experiences. The Independent ADR Institution should communicate any such information to the parties and other Neutrals, if any. Upon
objection of a party to continued service of the Neutral, the Independent ADR Institution should determine whether the Neutral should be
disqualified and should inform the parties of its decision. The disclosure obligation of the Neutral and procedure for disqualification
should continue throughout the period of appointment.
Reporter's Comments
The concept of a fair, independent and impartial Neutral (or Neutral Panel) is enshrined in leading standards governing arbitration and mediation. See
Federal Arbitration Act' 10(a)(2); Uniform Arbitration Act' 12(a)(2); AAA Commercial Rules 12,13,14,19; BBB Arbitration Rules 6, 8. The Joint
Standards for Mediators describe mediator impartiality as "central" to the mediation process and require mediators to conduct mediation in an
impartial manner. Joint Standards for Mediators, Art. 11; Standards for Court-Connected Programs' 8.1.a. Similar policies animate standards
requiring mediators to disclose conflicts of interest and to conduct the mediation in a fair manner. Joint Standards for Mediators, Arts. III, VI; SPIDR
Principles, Principles 4.b., c., f.; 6.d., e., i.; Standards for Court-Connected Programs' 8.1.b.
When Neutrals are appointed by a court or other organization, the appointing entity has an important obligation to ensure their impartiality. This
obligation entails a reasonable level of oversight of Neutral performance. Comments to the Joint Standards for Mediators indicate that "[w]hen
mediators are appointed by a court or institution, the appointing agency shall make reasonable efforts to ensure that mediators serve impartially."
Joint Standards for Mediators , Art. 11. The Standards for Court-Connected Programs therefore require courts to "adopt a code of ethical standards for
mediators [covering, among other things, impartiality and conflict of interest], together with procedures to handle violations of the code." Standards for
Court-Connected Programs' 8.1. For these and other reasons, the integrity and impartiality of the administrative organization is also important; the
growing use of arbitration and mediation in the Consumer context has also raised issues regarding the administration of such processes. See, e.g.,
Engalla v. Permanente Med. Grp., 928 P.2d 903 (Cal. 1997). See generally Edward Dauer, Engalla's Legacy to Arbitration, ADR Currents, Summer
1997, at 1; Principles for ADR Provider Organizations (setting forth general principles of responsible practice for ADR Provider Organizations, "entities
which hold themselves out as offering, brokering or administering dispute resolution services").
In addition to appointing Neutrals, administering institutions often perform many functions which have a direct impact on the conduct of the dispute
resolution process, including functions sometimes performed by Neutrals. The consensus of the Advisory Committee was that the reality and
perception of impartiality and fairness was as essential in the case of Independent ADR Institutions as it was in the case of individual Neutrals. Thus,
the Advisory Committee concluded that when an ADR Agreement mandates that parties resort to mediation or arbitration, the administering
Independent ADR Institution should be independent of either party and impartial . See, e.g., Kaiser Permanente Review and Recommendations 31
(recommending, first and foremost, the "creation of an independent, accountable administrator" for the Kaiser Permanente arbitration system to
counter "perception of bias" raised by "self-administration"). See also Principles for ADR Provider organizations (draft standards for organizations
providing ADR services). For this and other reasons, this Principle may be the single most significant contribution of the Protocol. In the long term,
moreover, the independence of administering institutions may be the greatest challenge of Consumer ADR.
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Broad disclosure of actual or potential conflicts of interest on the part of prospective Neutrals is critical to the real and perceived fairness of ADR.
Although consenting parties have considerable freedom to choose Neutrals, including those with experience in a particular industry or profession, the
key to informed consent is broad disclosure by prospective Neutrals. Therefore, a long line of authority under federal and state arbitration statutes
establishes the principle that an arbitrator's failure to disclose certain relationships or other facts which raise issues of partiality may result in reversal
of an arbitration award. See generally III Federal Arbitration Law Ch. 28 (discussing legal and ethical rules governing arbitrator impartiality). The
principle of disclosure is embodied in leading arbitration rules and ethical standards. See AAA Commercial Rule 19, NASD Code' 10312; BBB
Arbitration Rules 6, 8.
The Joint Standards for Mediators mandate disclosure of "all actual and potential conflicts of interest reasonably known to the mediator" including any
"dealing or relationship that might create an impression of possible bias." Joint Standards for Mediators , Art. 111. Thereafter, the mediator must await
the parties' agreement to proceed with mediation. The same concerns require mediators to identify and avoid conflicts during (and even after)
mediation. Id. Cf. Employment Due Process Protocol' C.4. (mediators and arbitrators have a duty to disclose any relationship which might reasonably
constitute or be perceived as a conflict of interest); SPIDR Principles, Principles 4.b., c., f.; 6.d.,e., i.; Standards for Court-Connected Programs '
8.1.b.
Although they did not establish it as a requirement under these Principles, most members of the Advisory Committee endorsed the concept of a "list
selection" process similar to that employed by the AAA. See AAA Commercial Rule 14. Under this process, the Independent ADR Institution provides
each of the parties with lists of prospective Neutrals and invites the parties to identify and rank acceptable individuals. Mutually acceptable Neutrals
are thereby identified. The AAA approach served as the model for other ADR standards. See, e.g., Employment Due Process Protocol' C.3.;
Securities Industry Conference on Arbitration, List Selection Rule (Final Draft, Sept. 18, 1997)(proposed by SICA as modification to Section 8 of the
Uniform Code of Arbitration); Proposed Rule Change by National Association of Securities Dealers, File No. SR-NASDO97 (proposed by NASD as
modification to Rules 10310 and 10311 of the NASD Code of Arbitration Procedure). The concern was expressed that the list selection approach may
create a financial tie between Neutrals in the pool and Providers, who will be "repeat players" in the ADR Program. Such considerations may
mandate, among other things, a larger panel of Neutrals, rotating assignments, or disclosure of past awards rendered by arbitrators.
In the interest of informed selection, the Advisory Committee recommends that parties be provided with or have access to some information regarding
recent ADR proceedings conducted by prospective Neutrals. Cf. Employment Due Process Protocol ' B.3 (recommending that parties be provided
with names, addresses, and phone numbers of party representatives in a prospective arbitrator's six most recent cases to aid in selection).
The dictates of fairness also extend to the conduct of ADR sessions. Thus, for example, arbitrators generally are forbidden from communicating with
parties outside of hearings. See III Federal Arbitration Law' 32.4. Similarly, standards for mediator conduct demand impartiality. See, e.g., Standards
for Court-Connected Programs' 8.1.
Although the rules and procedures of an ADR Program and oversight by the Independent ADR Institution are important in assuring the impartiality of
Neutrals, it is also essential that Neutrals be bound to perform in accordance with recognized ethical standards. In the case of arbitrators, the leading
ethical standard is the Code of Ethics for Arbitrators in Commercial Disputes (current version). Similarly, ethical standards governing mediator
eligibility also require impartiality. See, e.g., Standards for Court-Connected Programs' 8.1. It is the responsibility of the Independent ADR Institution
to develop or adopt ethical standards for Neutrals and to ensure that Neutrals understand and conform to applicable standards.
Some arbitration procedures provide for a "tripartite" panel in which each party appoints its own "party-arbitrator," and the two party-arbitrators select
a third arbitrator to complete the panel. See generally III Federal Arbitration Law' 28.4; see also Alan Scott Rau, Integrity in Private Judging, 38 S.
Tex. L. Rev. 485, 505-08 (1997)(noting problems with party-arbitrator concept). For a number of reasons, the Advisory Committee believed such
practices should be avoided in the Consumer sphere, and that all arbitrators should be neutral. Cf. Kaiser Permanente Review and
Recommendations 42 (expressing serious concerns regarding tripartite panel approach).
Practical Suggestions
Independent ADR Institutions should develop procedures which are appropriate to each of the ADR Programs they administer. A helpful model for
program administrators is the User Advisory Committee now being utilized by the AAA to establish procedures and policies for ADR in the areas of
employment, construction, health care, and other transactional settings. Cf. Kaiser Permanente Review and Recommendations 32 (recommending
"on-going, volunteer Advisory Committee" comprised of representatives of various interest groups, including "an appropriate consumer advocacy
organization" to consult in development of arbitration program). Such entities should provide a forum in which representatives of Consumers and
Providers cooperate in the development and implementation of policies and procedures governing an ADR program, including selection of Neutrals.
For selection of Neutrals, the Independent ADR Institution might utilize a list procedure similar to that used by the AAA. The list of prospective
Neutrals should include pertinent biographical information, including the names of parties and representatives involved in recent arbitration
proceedings handled by the prospective Neutral. Cf. Employment Due Process Protocol' B.3 (recommending that parties be provided with names,
addresses, and phone numbers of party representatives in a prospective arbitrator's six most recent cases to aid in selection). Each party should be
afforded discretion to reject any candidate with or without cause. Failing agreement on a Neutral or panel of Neutrals in this fashion, the Neutral
should be appointed by the Independent ADR Institution, subject to objection for good cause.
PRINCIPLE 4. QUALITY AND COMPETENCE OF NEUTRALS
All parties are entitled to competent, qualified Neutrals. Independent ADR Institutions are responsible for establishing and maintaining
standards for Neutrals in ADR Programs they administer.
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Organizations providing ADR services for Consumer transactions should have a continuing obligation to monitor the quality of the services they
provide. This obligation requires that they establish and maintain standards for Neutrals within the program which are appropriate to the issues or
disputes being addressed. The SPIDR Commission on Qualifications calls upon private as well as public programs offering ADR services to set and
monitor program performance. See SPIDR Principles, Principle 6, at 3-4. Likewise, the Standards for Court-Connected Programs call upon courts to
"ensure that the mediation programs to which they refer cases are monitored adequately... and evaluated [periodically]." Standards for Court-
Connected Programs' 6.0.
The most critical element in ADR quality control is the establishment and maintenance of standards of competence for Neutrals within the program.
"Competence" refers to "the acquisition of skills, knowledge and...other attributes" deemed necessary to assist others in resolving disputes in a
particular setting. See SPIDR Report on Qualifications at 6. In 1989, the SPIDR Commission on Qualifications published a list of general skills and
areas of knowledge that should be considered by groups establishing competency standards. See SPIDR Principles, Principle 11, at 4-7.
While ensuring the competence of Neutrals is always important, it is particularly "critical in contexts where party choice over the process, program or
neutral is limited" a reality of many Consumer ADR programs. See SPIDR Report on Qualifications at 5; SPIDR Principles, Principle 3 at 2 (extent to
which Neutral qualifications are mandated should vary by degree of choice parties have over dispute resolution process, ADR Program, and Neutral).
The SPIDR Commission on Qualifications requires private programs to, among other things, establish clear criteria for the selection and evaluation of
Neutrals and conduct periodic performance evaluations. SPIDR Principles at 3. See also SPIDR Report on Qualifications at 6 (Neutrals, professional
associations, programs and Consumers should all have responsibility for addressing and assessing Neutral performance); American Bar Ass'n•Young
Lawyers Div. & Special Comm. On Alternative Means of Dispute Resolution, Resolving Disputes: An Alternative Approach, A Handbook for
Establishment of Dispute Settlement Centers 32 (1983) (noting importance of post-mediation evaluation by administering agency).
The Advisory Committee concluded that it would be inappropriate (and, probably, impossible) to set forth a set of universally applicable qualifications
for Neutrals in Consumer disputes. The Advisory Committee's conclusions parallel those of other groups establishing broad standards for the conduct
of ADR. See, e.g. , SPIDR Report on Qualifications, SPIDR Principles at 1, 2. As the SPIDR Commission on Qualifications determined, Neutral
qualifications are best established by joint efforts of concerned "stakeholders" in specific contexts. See, e.g., Kaiser Permanente Review and
Recommendations 35-36 (recommending involvement of advisory committee in development of arbitrator qualifications).
It is important for Consumers to have a voice in establishing and maintaining standards of competence and quality in ADR programs. The SPIDR
Commission on Qualifications recently observed that "consumers... share a responsibility with programs, [Neutrals]... and associations to join in
evaluating and reporting on the performance of [Neutrals]... and programs and contributing to the development of policies and standards on
qualifications." SPIDR Report on Qualifications, 'G.2. at 9. See also SPIDR Principles, Principle 2 at 2 (private entities making judgments about
neutral qualifications should be guided by groups that include representatives of consumers of services). Although Neutral expertise is traditionally a
hallmark of arbitration, technical or professional experience often carries with it the perception if not the reality of bias. From the Consumer's
perspective, therefore, an arbitrator who shares the professional or commercial background of a Provider may not be the ideal judge. See, e.g. ,
Broemmer v. Abortion Serv. of Phoenix, 840 P.2d 1013 (Ariz. 1992)(adhesion arbitration agreement provided by abortion clinic which, among other
things, required arbitrator to be a licensed obstetrician/gynecologist, was unenforceable as beyond reasonable expectations of patient).
An Independent ADR Institution's responsibility for the qualifications of Neutrals in a particular Consumer ADR program dictates the development of
an appropriate training program. Ideally, the training should include a mentoring program with experienced Neutrals as well as coverage of applicable
principles of Consumer law. See Mark E. Budnitz, Arbitration of Disputes Between Consumers and Financial Institutions: A Serious Threat to
Consumer Protection, 10 Ohio St. J. on Disp. Res. 267, 315 (arbitrators need special legal expertise to address statutory issues respecting
consumer claims against financial institutions). Successful completion of such training should be reflected in the information on prospective Neutrals
furnished to the parties prior to selection. Cf. Employment Due Process Protocol' C.2.
The Advisory Committee generally supports the concept of broad choice in selection of Neutrals, and recognizes the right of Consumers and
Providers to jointly select any Neutral in whom the parties have requisite trust, even one who does not possess all of the qualifications recommended
by an ADR Program. Cf. Employment Due Process Protocol' C.1.; Standards for Court-Connected Programs' 13.4 ("Parties should have the widest
possible latitude in selecting mediators, consistent with public policy."). This assumes, of course, that both parties have a true choice in the matter,
that they are duly informed about the background and qualifications of the Neutrals proposed, and that all such Neutrals have made full disclosure of
possible conflicts of interest in accordance with Principle 3.
Elements of effective quality control include the establishment of standards for Neutrals, the development of a training program, and a program of
ongoing performance evaluation and feedback. Because the requirements of parties will vary with the circumstances, it will be necessary to establish
standards for Neutrals in an ADR Program with due regard for the specific needs of users of the program. As noted in connection with Principle 3, a
helpful model for program administrators is the User Advisory Committee now being utilized by the AAA to establish procedures and policies for ADR
in the areas of employment, construction, health care, and other transactional settings. Such entities could bring Consumer and Provider
representatives together to assist in the development and implementation of programs to train, qualify and monitor the performance of Neutrals.
PRINCIPLE 5. SMALL CLAIMS
Consumer ADR Agreements should make it clear that all parties retain the right to seek relief in a small claims court for disputes or claims
within the scope of its jurisdiction.
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Disputes arising out of Consumer transactions often involve relatively small amounts of money. Such disputes may be well-suited to resolution by
informal ADR processes and judicial small claims procedures.
Within the judicial system, the least expensive and most efficient alternative for resolution of claims for minor amounts of money often lies in small
claims courts. These courts typically provide a convenient, less formal and relatively expeditious judicial forum for handling such disputes, and afford
the benefit, where necessary, of the coercive powers of the judicial system. The Advisory Committee concluded that access to small claims tribunals
is an important right of Consumers which should not be waived by a pre-dispute ADR Agreement.
Practical Suggestions
Because, for cases involving small amounts of money, parties retain the option of an oral hearing in small claims court, it may be reasonable for the
ADR Agreement to provide for arbitration of small claims without a face-to-face hearing. Such alternatives may include "desk arbitration," which
involves the making of an arbitration award based on written submissions; proceedings conducted by telephone or electronic data transmission; and
other options. See Principle 12.
Mediation conducted by telephone conference call has also proven effective in resolving Consumer disputes. At least one major auto manufacturer
has successfully used this technique to resolve warranty claims. .
PRINCIPLE 6. REASONABLE COST
1. Reasonable Cost. Providers of goods and services should develop ADR programs which entail reasonable cost to Consumers based on
the circumstances of the dispute, including, among other things, the size and nature of the claim, the nature of goods or services provided,
and the ability of the Consumer to pay. In some cases, this may require the Provider to subsidize the process.
2. Handling of Payment. In the interest of ensuring fair and independent Neutrals, the making of fee arrangements and the payment of fees
should be administered on a rational, equitable and consistent basis by the Independent ADR Institution.
Reporter's Comments
A fundamental principle of our civil justice system is that a person should never be denied access to a court due to an inability to pay court costs. The
reality is that the public justice system is heavily subsidized, and that users pay only a small fraction of the actual cost of trial and related procedures.
Moreover, indigent litigants may be afforded relief from even these small fees. This principle has been extended in many cases to court-connected
ADR programs, in which courts defray all or part of the expenses of mediation or court-connected arbitration. See Standards for Court-Connected
Programs, " 5.1.a, 13.0 ("[c]ourts should impose mandatory attendance only when the cost of mediation is publicly funded"; "[c]ourts should make
mediation available to parties regardless of the parties' ability to pay"). According to data from the National Center for State Courts' ADR database,
approximately 60% of programs did not depend upon the parties to pay mediator fees for contract and tort cases; no programs charged user fees for
mediation of small claims. See Standards for Court-Connected Programs' 13.2., Commentary, at 13-4.
Similar policies have prompted various private ADR tribunals to institute mechanisms for waiving filing fees and other administrative expenses in
appropriate cases. See, e.g., NASD Code' 10332 (permitting Director of Arbitration to waive fees or deposits for parties in securities arbitration);
Nazon v. Shearson Lehman Bros., Inc., 832 F. Supp. 1540, 1543 (S.D. Fla. 1993)(employee, although required to bear expenses of pursuing civil
rights claim in arbitration, might seek waiver of fees under NASD rules). One federal court of appeals recently concluded that to be enforceable with
respect to actions under statutes governing employment discrimination, an arbitration agreement must not "require employees to pay either
unreasonable costs or any arbitrators' fees or expenses as a condition of access to the arbitration forum ." Cole v. Bums IntY Security Serv. , 105 F.3d
1465,1482-84 (D.C. Cir. 1997).
Due to the wide range of transactions and the equally broad spectrum of conflict in the Consumer arena, it is inappropriate to mandate bright-line
rules regarding ADR costs. In determining what is reasonable, consideration should be given to the nature of the conflict (including the size of
monetary claims, if any), and the nature of goods or services provided. In some cases, it may be possible to fulfill the principle of reasonable cost by
the use of the Internet, the telephone, other electronic media, or through written submissions. See, e.g., Michael F. Altschul & Elizabeth S. Stong,
AAA Develops New Arbitration Rules to Resolve Wireless Disputes, ADR Currents, Fall 1997, at 6. Abbreviated procedures may be particularly
appropriate in the context of small monetary claims, where there is always the alternative of a face-to-face hearing in small claims court. See Principle
5.
In some cases, the need to ensure reasonable costs for the Consumer will require the Provider of goods or services to subsidize the costs of ADR
which is mandated by the agreement. Indeed, many companies today deem it appropriate to pay most or all of the costs of ADR procedures for
claims and disputes involving individual employees. See Mei L. Bickner, et al, Developments in Employment Arbitration, 52 Disp. Res. J. 8 (1997).
The consensus of the Committee was that if participation in mediation is mandated by the ADR agreement, the Provider should pay the costs of the
procedure, including mediator's fees and expenses. The Committee considered, and ultimately rejected, the alternative of establishing specific
requirements for Provider subsidization of the cost of arbitration procedures, other than to conclude that the Provider of goods and services should
ensure the consumer a basic minimum arbitration procedure appropriate to the circumstances.
In some cases, an arbitrator may find it appropriate to defray the cost of Consumer participation in arbitration by an award of costs. Some lemon laws
provide for such relief. See, e.g., Chrysler Corp. v. Maiocco, 209 Conn. 579, 552 A.2d 1207 (1989)(applying Connecticut Lemon Law); Walker v.
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General Motors Corp ., 160 Misc.2d 903, 611 N.Y.S.2d 741 (1994)(applying provision of New York Lemon Law permitting "prevailing consumer' to
receive award of attorney's fees); General Motors Corp. v. Fischer, 140 Misc.2d 243, 530 N.Y.S.2d 484 (1988)(same). In some cases, it may be
appropriate for an arbitrator in a Consumer case to render an award of attorney's fees pursuant to statute or in other cases where a court might do so.
Without such an award, however, the Committee does not support the proposition that Providers are required to subsidize Consumers' attorney's fees
for ADR.
At the same time, there are legitimate concerns that having the Provider pay all or a substantial portion of neutral's fees and expenses may
undermine the latter's impartiality. For this reason, as observed in the Employment Due Process Protocol, '[i]mpartiality is best assured by the parties
sharing the fees and expenses of the mediator and arbitrator." Employment Due Process Protocol' 6. See also Stephen J. Ware, Arbitration and
Unconscionability After Doctor's Associates, Inc. v. Casarotto, 31 Wake Forest L. Rev. 1001, 1023 (1996). But see Alan Scott Rau, Integrity in Private
Judging, 38 S. Tex. L. Rev. 485, 528 (1997). Therefore, the Advisory Committee concludes that Consumers should have the option to share up to
half of the Neutral's fees and expenses. In addition, unless the parties agree otherwise after a dispute arises, the handling of fee arrangements and
the payment of fees should be conducted by the Independent ADR Institution. The latter, "by negotiating the parties' share of costs and collecting
such fees, might be able to reduce the bias potential of disparate contributions by forwarding payment to the mediator and/or arbitrator without
disclosing the parties' share therein ." Employment Due Process Protocol' 6.
Some ADR Programs serving Consumers are staffed wholly or partly by unpaid volunteers. See, e.g. , BBB Arbitration Rules at 2. The use of such
programs, including community dispute resolution centers, may be a satisfactory means of addressing cost concerns associated with Consumer ADR,
particularly in cases involving low stakes. However, concerns have been expressed by some authorities regarding overdependence on volunteer
Neutrals. See Standards for Court-Connected Programs' 13.1, Commentary, at 13-2 (warning of dangers of exclusive reliance on volunteers in ADR
programs). Care must be taken by those responsible for overseeing such programs to make certain that lower cost does not come at the expense of
adequately qualified Neutrals.
Practical Sugge tip ons
In the event that an ADR procedure is mandated by the Provider of goods and services and the Consumer demonstrates an inability to pay all or part
of the costs of the procedure, the Provider should front such costs subject to allocation in the arbitration award or mediation settlement.
In some cases, it may be possible to fulfill the principle of reasonable cost by the use of the Internet, the telephone, other electronic media, or through
written submissions. See, e.g., Michael F. Altschul & Elizabeth S. Stong, AAA Develops New Arbitration Rules to Resolve Wireless Disputes, ADR
Currents, Fall 1997, at 6.
PRINCIPLE 7. REASONABLY CONVENIENT LOCATION
In the case of face-to-face proceedings, the proceedings should be conducted at a location which is reasonably convenient to both parties
with due consideration of their ability to travel and other pertinent circumstances. If the parties are unable to agree on a location, the
determination should be made by the Independent ADR Institution or by the Neutral.
Reporter's Comments
The Advisory Committee concludes that ADR proceedings should take place at a location that is reasonably convenient to all parties.
Flexibility in choosing a hearing location is a theoretical advantage of consensual conflict resolution, permitting minimal cost and inconvenience to all
parties. On the other hand, location terms may put one party at a great disadvantage, significantly increasing the cost and logistical complexity of
dispute resolution. This is particularly true with regard to binding arbitration, which may involve the participation of multiple witnesses as well as the
parties and their representatives. S ee III Federal Arbitration Law' 32.8.3.
Typically, contractual agreements which provide that arbitration hearings will be conducted in a particular place are honored by the courts. See, e.g.,
Management Recruiters Intl, Inc. v. Bloor, 129 F.3d 851 (6 th Cir. 1997)(under Federal Arbitration Act, forum expectations of parties in arbitration
agreement are enforceable, and may not be upset by state law); Bear Stearns & Co. v. Bennett, 938 F.2d 31, 32 (2 nd Cir. 1991)(noting "prima facie
validity" of forum-selection clauses, including those in arbitration agreements); Snyder v. Smith, 736 F.2d 409, 419 (7th Cir.), cert. denied, 469 U.S.
1037, 105 S. Ct. 513, 83 L. Ed.2d 403 (1984)(courts must give effect to freely-negotiated arbitration clause in commercial agreement). See It Federal
Arbitration Law' 24.2.3.4 (discussing Federal Arbitration Act). Cf. Carnival Cruise Lines, Inc. v. Shute, 449 U.S.585,111 S.Ct. 1522, 113 L. Ed. 2d
622 (1991)Qudicial forum selection clause in terms on cruise ship passenger ticket enforceable); MIS Bremen v. Zapata Off-Shore Co. , 407 U.S. 1,
92 S. Ct. 1907. 32 L.Ed.2d (1972)(judicial forum selection clause is prima facie valid and should be enforced unless enforcement is shown by the
resisting party to be unreasonable under the circumstances).
The same is true of cases where the parties agree to a process for selecting location, such as that provided by the AAA Rules. See, e.g., AAA
Commercial Rule 11. There is authority for pre-award challenges to location selection mechanisms. Aerojet-General Corp. v. AAA , 478 F2d 248 (9th
Cir. 1973)(pre-award judicial review appropriate where choice of arbitration locale not made in good faith and one or more parties are faced with
severe irreparable injury). Again, however, such action is likely to be deemed appropriate only in extreme cases. See Seguro de Servicio de Salud v.
McAuto Systems, 878 F.2d 5, 9 n.6 (1st Cir. 1989); S.J. Groves & Sons Co, v. AAA, 452 F. Supp. 121, 124 (D. Minn. 1978).
Some courts, however, have identified limits on locational designations in judicial forum selection provisions. See Mark E. Budnitz, Arbitration of
Disputes Between Consumers and Financial Institutions: A Serious Threat to Consumer Protection, 10 Ohio St. J. on Disp. Res. 267,292; David S.
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Schwartz, Enforcing Small Print to Protect Big Business: Employee and Consumer Rights Claims in an Age of Compelled Arbitration, 1997 Wis. L.
Rev. 36, 121 n.366. Forum selection clauses may be overcome if it can be demonstrated that their incorporation in the contract was the result of
fraud, undue influence, or an extreme disparity in bargaining power, or if the selected forum is so inconvenient that it would effectively deprive a party
of a day in court. See, e.g., Kubis & Persyk Assoc., Inc. v. Sun Microsystems, Inc., 146 N.J. 176,188-97, 680 A.2d 618, 624-29 (1996)(reviewing
cases and recognizing limits on enforceability of forum selection clauses); Moses v. Business Card Expr., Inc., 929 F.2d 1131, 1136-39 (6 11 Cir.),
cert. denied, 502 U.S. 821, 112 S. Ct. 81, 116 L.Ed.2d 54 (1991)(in considering change of venue motion, forum selection clause must be considered
along with convenience of parties and witnesses and overall fairness); Hoffman v. Minuteman Press Intl, Inc., 747 F. Supp. 552 (W.D. Mo. 1990)
(denying venue change in accordance with forum selection agreement on basis of extreme hardship and alleged fraud in the inducement); Cutter v.
Scoff & Fetzer Cc ., 510 F. Supp. 905, 908 (E.D. Wis. 1981)(refusing to enforce forum selection clause on basis of state Fair Dealership Law, and
observing that clause was not the subject of negotiation). See also Restatement (Second) of Conflict of Laws' 80 (1969)(agreement regarding place
of action will be given effect unless it is unfair or unreasonable); Benjamin Levin & Richard Morrison, Kubis and the Changing Landscape of Forum
Selection Clauses, 16 Franchise. L.J. 97 (1997) (discussing trend to limit enforceability of forum selection clauses in franchise agreements by statute
and case law); Donald B. Brenner, There is a Developing Trend Among Courts of Making Choice of Forum Clauses in Franchise Agreements
Presumptively Invalid, 102 Com. L.J. 94 (1997)(same).
in the course of finding a judicial forum selection provision in a form franchise agreement presumptively invalid, the New Jersey Supreme Court
recognized that the following factors may be relevant to enforceability: (1) whether the provision is the product of arm's length negotiations or is
effectively imposed by a party with disproportionate bargaining power; and (2) whether the provision provides an "indirect benefit to...(the stronger
party by making] litigation more costly and cumbersome for economically weaker ...[parties] that often lack the sophistication and resources to litigate
effectively a long distance from home." Kubis, 146 N.J. at 193-94, 680 A.2d at 626-27. See also Model Choice of Forum Act' 3(4) Comment (1968)
("A significant factor to be considered in determining whether there was an abuse of economic power or other unconscionable means' [sufficient to
deny enforcement to a forum selection clause] is whether the choice of forum agreement was contained in an adhesion, or take-it-or-leave-it'
contract.").
Such considerations may also affect the enforceability of an agreement to arbitrate. See Patterson v. ITT Consumer Financial Corp., 14 Cal: App. 4
th , 1659, 18 Cal. Rptr.2d 563 (11993) (arbitration provisions in loan agreements requiring California consumers to arbitrate in Minnesota were
unconscionable).
Similar concerns have led some states to enact laws placing geographical limitations on the situs of arbitration. See, e.g. , Hambell v. Alphagraphics
Franchising Inc., 779 F. Supp. 910 (E.D. Mich. 1991)(provision in franchise agreement for arbitration to take place outside state is void and
unenforceable under Mich. Stat. Ann. ' 19.854(27)(f)(1984))• Donmoor, Inc. v. Sturtevant, 449 So.2d 869 (Fla. Ct. App. 1984)(clause in contract
providing for arbitration in another state is unenforceable). Of course, such laws may be preempted by federal substantive law within the scope of the
Federal Arbitration Act. See Levin & Morrison, supra, at 115-16.
In light of concerns such as the foregoing which are also relevant in the consumer arena, the Advisory Committee concluded that contractual ADR
provisions should include a commitment to conduct ADR at a "reasonably convenient location.' Some members of the Advisory Committee favored
setting an arbitrary mileage limit (i.e. "no more than 50 miles from the place where the transaction occurred") while others advocated the nearest large
city. Others pointed out that parties sometimes relocate. There was general agreement, however, that an agreed-upon process for independent
determination of the locale if the parties fail to agree would be fair and equitable to both parties. See, e.g., AAA Rule 11; Uniform Code of Arbitration'
9; NASD Code of Arbitration Procedure' 10315. A similar function may be performed by the arbitrator or other duly appointed Neutral. (The AAA
Rules already accord arbitrators the authority to set specific sites for arbitration hearings. See AAA Rule 21.)
In many cases, it may be possible to minimize the need for long distance travel and attendant expenses through the use of telephonic
communications and submission of documents. An example of the application of such devices is the Expedited Procedures of the AAA Rules, which
are generally applied to claims of $50,000 or less. See AAA Rules 9, 53-57. See also Uniform Code of Arbitration' 2. Telephonic mediation has long
been a feature of some lemon law programs, and is currently being used in Consumer ADR by the National Futures Association (NFA). The National
Association of Securities Dealers (NASD) is currently conducting a pilot program utilizing telephonic mediation.
Recent projects sponsored by the Better Business Bureau, the American Arbitration Association, and other organizations suggest the possibilities of
online conflict resolution for online transactions as well as other kinds of disputes. See generally George H. Friedman, Alternative Dispute Resolution
and Emerging Online Technologies: Challenges and Opportunities, 19 Hastings Comm. & Ent. L.J. 695 (1997).
If, as proposed, Consumers have the alternative of pursuing relief in a small claims court of competent jurisdiction, many concerns associated with
long distance travel will be obviated with regard to small claims.
Practical Suggestions
Unless a convenient location can be specifically identified in the ADR agreement, the location should be left to the agreement of the parties after a
dispute has arisen. The rules governing ADR under the agreement should establish a process for determination of the location by an independent
party (such as a Neutral or the Independent ADR Institution) if the parties cannot agree on a location.
In some cases, it may be reasonable to conduct proceedings by telephone or electronic data transmission, with or without submission of documents.
See, e.g., Principle 12. Such options may be particularly desirable in the case of arbitration of small claims, since the parties have the choice of going
to small claims court. See Principle 5.
PRINCIPLE 8. REASONABLE TIME LIMITS
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ADR proceedings should occur within a reasonable time, without undue delay. The rules governing ADR should establish specific
reasonable time periods for each step in the ADR process and, where necessary, set forth default procedures in the event a party fails to
participate in the process after reasonable notice.
Reporter's Comments
A primary impetus for conflict resolution outside the court system is the potential for relatively speedy and efficient resolution of disputes. From the
Consumer's perspective, moreover, the expectation of a reasonably prompt conclusion is likely to be, along with cost savings, the leading perceived
advantage of consensual mediation or arbitration. See Madden v. Kaiser Foundation Hospitals, 17 Cal.3d 699, 711, 131 Cal. Rptr. 882, 552 P.2d
1178 (1976)(speed and economy of arbitration, in contrast to the expense and delay of jury trial, could prove helpful to all parties).
The principle of relatively prompt, efficient conflict resolution underlies standards governing the conduct of Neutrals. Mediators are admonished that
"[a] quality process requires a commitment by the mediator to diligence...." Joint Standards for Mediators, Art. Vt. The Joint Standards for Mediators
also comment that "[m]ediators should only accept cases when they can satisfy the reasonable expectations of the parties concerning the timing of
the process." Id.
A basic requirement is that the rules governing ADR establish and further the basic principle of conflict resolution within a reasonable time. This
means not only that the rules should set forth specific time periods for various steps in the ADR process, but that default rules come into play if a
parry fails to participate in the manner required by the rules after due notice. This principle is embodied in leading ADR standards, including the AAA
Commercial Rules. See, e.g., Rules 6, 8, 11, 13, 14, 15, 21, 35, 36, 41. See also BBB Arbitration Rule 27 ("BBB shall make every effort to obtain a
final resolution of your complaint within 60 days, unless state or federal law provides otherwise. This time period may be extended at the request of
the customer.").
Of course, it is not enough that the agreement places strict time limitations on procedural steps if these limitations are not effectively enforced a likely
occurrence when an ADR Program is not independent of the Provider. Extreme disparity between stipulated time limits and actual practice under
arbitration rules may render an arbitration agreement unenforceable, as discussed at length in a recent California Supreme Court decision. See
generally Engaila v. Permanente Med. Grp., Inc., 938 P.2d 903 (Cal. 1997). The court pointedly observed,
[M]any large institutional users of arbitration, including most health maintenance organizations (HMO's), avoid the potential problems of delay in the
selection of arbitrators by contracting with neutral third parry organizations, such as the American Arbitration Association (AAA). These organizations
will then assume responsibility for administering the claim from the time the arbitration demand is filed, and will ensure the arbitrator or arbitrators are
chosen in a timely manner.
Id. at 975-76. In response to this decision, Kaiser appointed an advisory panel to propose reforms to its arbitration program. See Kaiser Permanente
Review and Recommendations 33-34 (recommending establishment of and adherence to stated arbitration process deadlines).
Similarly, courts interpreting state lemon laws have acknowledged the right of Consumers to forgo arbitration and sue in court when the statutory
period for the lemon law remedy elapsed without a remedy through no fault of their own. See, e.g., Harrison v. Nissan Motor Corp., 111 F.3d 343 (3 rd
Cir. 1997)(court suit permissible where BBB failed to conduct arbitration within stipulated period); Ford Motor Co. v. Ward, 577 So.2d 641 (1991)
(Consumer not required to exhaust arbitration procedures before bringing suit where dealer made it impossible for Consumer to arbitrate).
When a Consumer dispute involves a small amount of money and relatively straightforward issues, it is reasonable to assume that an out-of-court
resolution of such issues should be relatively quick. In such cases, it may be appropriate to develop expedited procedures and to set outside time
limits on ADR Processes. Thus, for example, "Fast Track" arbitration procedures for construction disputes provide that "[t]he arbitration shall be
completed by settlement or award within sixty (60) days of confirmation of the arbitrator's appointment, unless all parties agree otherwise or the
arbitrator extends this time in extraordinary cases ...." AAA Construction Procedures, ' F-12. The rules also require the award to be rendered within
seven days from the closing of the hearing. See id.,' F-11.
Similarly, the AAA Wireless Rules set forth Fast Track procedures for matters involving less than $2,000 in claims or counterclaims. The Fast Track
contemplates a "desk" arbitration procedure involving a hearing on documents; a limit of one seven-day extension on the time to respond to a claim or
counterclaim; notice by telephone, electronic mail and other forms of electronic communication and by overnight mail, shortened time limits to select
an arbitrator; no discovery except in extraordinary cases; a shortened time limit for rendition of award; and a time standard which sets a goal of 45
days from appointment of the arbitrator to award.
PRINCIPLE 9. RIGHT TO REPRESENTATION
All parties participating in processes in ADR Programs have the right, at their own expense, to be represented by a spokesperson of their
own choosing. The ADR rules and procedures should so specify.
Reporter's Comments
The right to be counseled by an attorney or other representative is an important one that is frequently reflected in standard rules governing ADR
proceedings. See, e.g., AAA Commercial Rule 22; NASD Code' 10316; BBB Arbitration Rule 9.
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The Advisory Committee adapted pertinent provisions of the Employment Due Process Protocol. See Employment Due Process Protocol' B.1
In the interest of full disclosure of potential conflicts of interest on the part of Neutrals, the Advisory Committee recommends that the names and
affiliations of lawyers and other representatives of each party be communicated to prospective Neutrals and to all parties prior to selection of
Neutrals.
As previously noted, the Advisory Committee recognizes that the cost of legal services should be borne by the parties who are receiving the services,
and Providers should not be expected to subsidize the cost of legal representation for Consumers. There may, however, be situations where an
arbitrator awards attorney's fees in circumstances where they would be available in court. See Commentary to Principle 6.
The Advisory Committee recognizes that the involvement of non-attorney representatives in some forms of binding arbitration has raised issues
respecting the unauthorized practice of law. The Committee takes no position regarding these issues.
Practical Suggestions
Although the cost of legal services should be borne by the parties who are receiving the services, Independent ADR Institutions should provide
Consumers with information regarding referral services and other institutions which might offer assistance in locating and securing competent
spokespersons, such as bar associations, legal service associations, and Consumer organizations.
PRINCIPLE 10. MEDIATION
The use of mediation is strongly encouraged as an informal means of assisting parties in resolving their own disputes.
Reporter's Comments
The increasing popularity of mediation has been a primary impetus for the revolution in conflict resolution approaches. Mediation describes arrange of
processes in which an impartial person helps disputing parties to communicate and to make voluntary, informed choices in an effort to resolve their
dispute. The rapid growth of mediation may be attributed to its informality, flexibility, and emphasis on the particular needs of disputing parties. For
this reason, mediation is uniquely adaptable to a wide spectrum of controversies.
The widespread use of mediation in court-connected programs inspired the development of a set of national standards for such endeavors. See
generally Standards for Court-Connected Programs .
Parallel developments are occurring in the private sphere. Recently, the leading standard construction industry contract was modified to require
mediation as an element in project conflict resolution, necessitating modification of related AAA rules. See AAA Construction Procedures.
Advisory Committee members agreed that mediation should be encouraged as a valuable intervention strategy, but differed as to the propriety and
reasonableness of Provider-drafted ADR Agreements in Consumer contracts which require Consumers to participate in mediation. Those unopposed
to such provisions, a majority of Advisory Committee members, noted that mediation offers significant potential advantages and relatively few risks to
participants. Particularly where the Provider subsidizes mediation, they reasoned, the prospective benefits to Consumers far outweigh the costs.
Those expressing concerns regarding "mandatory" mediation adhere to the view that the choice to participate in settlement discussions should be
made voluntarily, and only after conflict arises. Other concerns relate to the cost of mediation, the quality of mediators, the likelihood that not all
disputes will be appropriate for mediation, and the lack of understanding of mediation processes (including an understanding of the role of the neutral
intervener) on the part of many Consumers. Cf. Standards for Court-Connected Programs' 5.0 (courts should impose mandatory attendance in court-
connected mediation only when the cost of mediation is publicly funded, the mediation program is of high quality, and other requirements are met);
SPIDR Report on Court-Mandated ADR at 2-3.
Encouragement of the use of mediation involves, among other things, educating Consumers and their attorneys about the process. See Principle 2
"Access to Information Regarding ADR Program." See also SPIDR Principles at 6 ("It is the responsibility of...private programs offering dispute
resolution services to define clearly the services they provide ...[and provide information about the program and neutrals to the parties.]"). At a
minimum, Consumers should be provided with (or have immediate access to) written information to explain mediation. As a rule, such information
should be in the same language as the principal contract for goods or services. Cf. Standards for Court-Connected Programs' 3.2.b., Commentary, at
3-4 (If a significant percentage of the population served is non-English-speaking, the material should be available in other languages as well.) See
Principle 2.
Education of users should also include some treatment of the distinctive styles and strategies employed by mediators. Today, mediators handling
commercial disputes sometimes employ a facilitative, non-directive approach to problem-solving; in other situations, a more directive approach may
be employed. See generally Leonard L. Riskin, Understanding Mediators' Orientations, Strategies, and Techniques: A Grid for the Perplexed, 1 Harv.
Negotiation L. Rev. 7 (1996)(providing a graphic tool for analyzing mediator approaches). Participants need to decide in advance of selection the
approach they want a mediator to adopt. The Independent ADR Institution should advise the parties regarding the possibility of interviewing
prospective mediators regarding qualifications and style, and help to arrange such interviews.
Practical Suggestions
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As referenced in Principle 5, mediation conducted by telephone conference call has proven to be an effective, economical method of resolving
Consumer disputes where in-person mediation may not be feasible.
SPECIAL PROVISIONS RELATING TO BINDING ARBITRATION
PRINCIPLE 11. AGREEMENTS TO ARBITRATE
Consumers should be given:
a. clear and adequate notice of the arbitration provision and its consequences, including a statement of its mandatory or
optional character;
b. reasonable access to information regarding the arbitration process, including basic distinctions between arbitration and
court proceedings, related costs, and advice as to where they may obtain more complete information regarding arbitration
procedures and arbitrator rosters;
c. notice of the option to make use of applicable small claims court procedures as an alternative to binding arbitration In
appropriate cases; and,
d. a clear statement of the means by which the Consumer may exercise the option (if any) to submit disputes to arbitration or
to court process.
In convening the Advisory Committee which developed this Protocol, the AAA requested that the Committee focus its attention upon due process
standards for the conduct of Consumer ADR processes and not directly address the process of forming an agreement to mediate or to arbitrate.
Committee deliberations revealed a range of opinions regarding the use of pre-dispute binding arbitration agreements in Consumer contracts. Without
taking a position on the appropriateness of such agreements, the Committee developed Principle 11 with the intended purpose of providing guidance
to the AAA and similar Independent ADR Institutions in the development of specific arbitration programs within the context of existing law enforcing
pre-dispute arbitration agreements. Within this context, Principle 11 emphasizes the importance of knowing, informed assent to arbitration
agreements.
Consumers should have clear and adequate notice of the arbitration provision and basic information regarding the process at the time of assent. The
appropriate method of giving notice and providing essential information will vary with the circumstances. For example, electronic transactions
involving software licensure agreements require different notice procedures than face-to-face negotiations or paper transactions. In all cases,
however, there should be some form of conspicuous notice of the agreement to arbitrate and its basic consequences (including comparison to court
process, cost information, etc.). In addition, the Consumer should be given the opportunity to acquire additional information regarding the arbitration
process. The latter might be obtainable through a mail or Web site address, an 800 number or other means for Consumers to obtain additional
information regarding arbitration rules and procedures (such as a brochure available on request).
The following is an example of a possible notice. Ideally, the "notice box" would be sufficiently prominent in the contract document or electronic record
so that a Consumer would readily notice it.
P NOTICE OF ARBITRATION AGREEMENT: ?I
This agreement provides that all disputes between you and [PROVIDER] will be resolved by BINDING ARBITRATION.
thus GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend your rights under this contract (EXCEPT for
that may be taken to SMALL CLAIMS COURT).
'Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury.
You are entitled to a FAIR HEARING, BUT the arbitration procedures are SIMPLER AND MORE LIMITED THAN RULES
APPLICABLE IN COURT.
`Arbitrator decisions are as enforceable as any court order and are subject to VERY LIMITED REVIEW BY A COURT.
FOR MORE DETAILS,
'Review Section 6.2 above, OR
• Check our Arbitration Web Site @ ACMEADR.COM, OR
• Call 1-800-000-0000
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Among other things, Consumers should have access to information regarding the initiation of the arbitration process. This may be accomplished, for
example, by providing customers with a brochure outlining relevant arbitration procedures. If the Consumer has the option of choosing between
arbitration or court process, either at the time of contracting or after disputes have arisen, the timing and means of electing the option should also be
clearly stated in the notice.
PRINCIPLE 12. ARBITRATION HEARINGS
1. Fundamentally-Fair Hearing. All parties are entitled to a fundamentally-fair arbitration hearing. This requires adequate notice of hearings
and an opportunity to be heard and to present relevant evidence to impartial decision- makers. In some cases, such as some small claims,
the requirement of fundamental fairness may be met by hearings conducted by electronic or telephonic means or by a submission of
documents. However, the Neutral should have discretionary authority to require a face-to-face hearing upon the request of a party.
2 Confidentiality in Arbitration. Consistent with general expectations of privacy in arbitration hearings, the arbitrator should make
reasonable efforts to maintain the privacy of the hearing to the extent permitted by applicable law. The arbitrator should also carefully
consider claims of privilege and confidentiality when addressing evidentiary issues.
Reporter's Comments
There is universal agreement that parties to arbitration are entitled to a "fundamentally-fair hearing." See III Federal Arbitration Law' 32.3.1.1. The
language of subsection 1 closely follows the definition of a "fundamentally-fair hearing" set forth in Bowles Financial Grp., Inc. v. Stifel, Nicolaus &
Co., 22 F.3d 1010, 1013 (10 th Cir. 1994)(applying the Federal Arbitration Act). Beyond these basic requirements, of course, "[a]rbitration need not
follow all the niceties of...courts." Grovner v. Georgia-Pacific Corp., 625 F.2d 1289, 1290 (5 11 Cir. 1980). Moreover, the arbitrators have great leeway
in conducting hearings, within the bounds of the parties' agreement. See Federal Arbitration Law, supra, " 32.1., 32.3.1.1.
Although authority is split on whether or not parties are guaranteed a face-to-face hearing before the arbitrators, see id. , the Advisory Committee
concluded that while in some circumstances fundamental fairness may require a face-to-face hearing, in other cases the requirement may be satisfied
by telephonic or electronic communications or submissions of documents. See, e.g. , Construction Arbitration Procedures ' F-9. See, e.g., Michael F.
Altschul & Elizabeth S. Stong, AAA Develops New Arbitration Rules to Resolve Wireless Disputes, ADR Currents, Fall 1997, at 6. In small claims
cases, the requirement of these Principles that parties retain the option of going to small claims court may make it reasonable for the ADR agreement
to provide alternatives to a face-to-face hearing.
Although confidentiality of hearings may be considered an advantage of arbitration, there is no absolute guarantee of confidentiality. See id. , ' 32.6.1.
Unlike court proceedings, however, the general public has no right to attend arbitration proceedings; if the parties agree, moreover, attendance at
hearings may be severely restricted. See, e.g. , AAA Commercial Rule 25 (directing arbitrators to "maintain the privacy of the hearings unless the law
provides to the contrary"). Likewise, arbitrators should be mindful of evidentiary privileges and confidentiality rights available to its parties under
applicable law and have discretion to issue protective orders respecting such rights.
The Advisory Committee recognized the dilemma posed by the tension between the desire for confidentiality in arbitration and the need to provide
Consumers access to information regarding arbitrators and sponsoring Independent ADR Institutions, including case statistics, data on recent
arbitrations and other pertinent information. See, e.g., Alan Scott Rau, Integrity in Private Judging, 38 S. Tex. L. Rev. 485, 524-26 (1997)(discussing
concerns with "asymmetry of information" regarding arbitrators when one party is an institutional "repeat player," and suggesting need for increased
disclosure of information regarding past decisions by an arbitrator); Mark E. Budnitz, Arbitration of Disputes Between Consumers and Financial
Institutions: A Serious Threat to Consumer Protection , 10 Ohio St. J. on Disp. Res. 267, 293 (discussing disparity between "repeat players" and
consumers with regard to knowledge of prospective arbitrators). Although the Advisory Committee did not address this issue, it recommends that the
matter be the focus of serious study by the Committee or a similar advisory group, supported by appropriate independent research efforts.
Practical Suggestions
Because these Principles provide that parties should retain the option of an oral hearing in small claims court (Principle 5), it may be reasonable for
the ADR agreement to provide other means for small claims arbitration. Such alternatives may include a "desk arbitration" involving a decision on
written submissions, participation in proceedings by telephone or electronic data transmission, and other options.
As is generally the case in commercial arbitration, arbitrators may undertake reasonable means to protect the privacy of the hearing
PRINCIPLE 13. ACCESS TO INFORMATION
No party should ever be denied the right to a fundamentally-fair process due to an inability to obtain information material to a dispute.
Consumer ADR agreements which provide for binding arbitration should establish procedures for arbitrator-supervised exchange of
Information prior to arbitration, bearing In mind the expedited nature of arbitration.
Reporter's Comments
It is understood that ADR sometimes represents a tradeoff between the concept of full discovery associated with court procedures and the
efficiencies associated with minimal pretrial process. A hallmark of binding arbitration is the avoidance of the cost and delay associated with extensive
pre-hearing discovery. See III Federal Arbitration Law' 34.1. In recent years, however, the notion that arbitration means little or no discovery has
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moderated due to the widening range of cases submitted to arbitration and the increasing recognition that at least some pre-hearing exchange of
information may be necessary and appropriate to meet the due process rights of participants and may in some cases reduce the overall length of the
process. See id. , Ch. 34. See also Mark E. Budnitz, Arbitration of Disputes Between Consumers and Financial Institutions: A Serious Threat to
Consumer Protection, 10 Ohio St. J. on Disp. Res. 267, 283-84, 311, 314 (arguing that limits on discovery in arbitration hamper consumer
claimants).
Addressing statutory disputes arising out of employment relationships, the Employment Due Process Protocol states that "[a]dequate but limited pre-
trial discovery is to be encouraged and employees [and their representatives] should have access to all information reasonably relevant to mediation
and/or arbitration of their claims." Employment Due Process Protocol' B.3. The Committee supports the concept of limiting the exchange of
information as much as possible while ensuring that Consumers and Providers each have access to information that is legally obtainable and relevant
to their case. In most cases, this means that pre-hearing information exchange will consist of an exchange of documents as directed by the arbitrator,
identification of witnesses and a summary of their expected testimony. Arbitrators should have the authority to require additional discovery when
necessary, such as requiring the deposition of witnesses unable to appear at the hearing in order to preserve their testimony.
Although information exchange issues which cannot be handled by the agreement of the parties should generally be left to the discretion of the
arbitrator, it may be appropriate for advisory groups (including adequate consumer representation) to develop guidelines for information exchange in
specific kinds of cases. See, e.g., National Association of Securities Dealers, National Arbitration and Mediation Committee, Report of the Drafting
Subcommittee on The Discovery Guide, Dec. 3, 1997 Draft.
Some Advisory Committee members also expressed concern about the forced production of privileged documents, and argued that arbitrators should
be required to observe established privileges such as the attorney-client privilege and work-product privilege. See James H. Carter, The Attorney-
Client Privilege and Arbitration, ADR Currents, Winter 1996-97, 1. As stated in Principle 12, arbitrators should "carefully consider claims of privilege
and confidentiality when addressing evidentiary issues." Such protections may be addressed in the arbitration agreement (including incorporated
arbitration procedures), and should be thoroughly treated, along with information exchange issues, in arbitrator training programs.
Practical Suggestions
in many cases, issues relating to information exchange may be addressed by the arbitrator(s) at a preliminary conference. See, e.g., AAA Wireless
Rules " R-9, R-10. Some rules require that all exhibits be exchanged a certain number of days prior to hearings. See id., R-10.
PRINCIPLE 14. ARBITRAL REMEDIES
The arbitrator should be empowered to grant whatever relief would be available in court under law or in equity.
Reporter's Comments
As a general rule, arbitrators have broad authority to fashion relief appropriate to the circumstances. See III Federal Arbitration Law' 36.1.1. Their
discretion is limited only by the agreement of the parties and the scope of the submission to arbitration. See id., '36.1-2.
There are, however, a number of issues respecting the ability of arbitrators to award certain remedies which would be available in court. For example,
although the trend under federal and state law is to acknowledge the authority of arbitrators to award punitive damages, a few state courts still take
the opposing view. See generally Federal Arbitration Law, supra, ' 36.3; Thomas J. Stipanowich, Punitive Damages and the Consumerization of
Arbitration, 92 Nw. U. L. Rev. 1 (1998). And although courts may award attorney's fees where permitted by statute or by agreement of the parties, or
where a party acts vexatiously or in bad faith, there is conflicting authority regarding the ability of arbitrators to take similar action. See generally
Federal Arbitration Law, supra, '36.8.
This provision incorporates language similar to that contained in the Employment Due Process Protocol, 'C.5. The intent is to make clear that
arbitrators deriving their authority from Consumer contracts should enjoy the same authority courts have to fashion relief, including awarding
attorney's fees and punitive damages in appropriate cases.
Contractual limitations of damages may limit the authority of arbitrators in the same fashion that they limit judicial remedies. It is possible that an
award of damages in excess of a contractual limit would be vacated under pertinent statutory standards or common law principles. See, e.g., FAA' 10
(a)(4). But see Stipanowich, Punitive Damages, supra, at 33-36 (discussing public policy limitations on pre-dispute caps on punitive damages).
PRINCIPLE 15. ARBITRATION AWARDS
1. Final and Binding Award; Limited Scope of Review. If provided in the agreement to arbitrate, the arbitrator's award should be final
and binding, but subject to review in accordance with applicable statutes governing arbitration awards.
2. Standards to Guide Arbitrator Decision-Making. In making the award, the arbitrator should apply any identified, pertinent contract
terms, statutes and legal precedents.
3. Explanation of Award. At the timely request of either party, the arbitrator should provide a brief written explanation of the basis for
the award. To facilitate such requests, the arbitrator should discuss the matter with the parties prior to the arbitration hearing.
Repgrter's Comments
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Review of arbitration awards is very limited under modern arbitration statutes. Courts are very reluctant to vacate awards, or to second-guess the
decisions of arbitrators on matters of procedure or substance. See generally IV Federal Arbitration Law, ch. 40. "Arbitrators can misconstrue
contracts, make erroneous decisions of fact, and misapply law, all without having their awards vacated." See id. , '40.6.1. While some members of
the Advisory Committee expressed concerns regarding the current state of the law, it was generally agreed that finality was a primary objective of
arbitration and that it would be inappropriate to recommend more rigorous judicial review for Consumer arbitration awards than for other arbitration
awards. At the same time, however, the Advisory Committee concluded that the rules should specifically direct arbitrators to follow pertinent contract
terms and legal principles. This requirement may have implications for qualifications and training of Neutrals pursuant to Principle 4.
Leading modern arbitration statutes do not require arbitrators to provide a written explanation or give reasons for their awards. See generally III
Federal Arbitration Law' 37.4.1. Similarly, some leading commercial arbitration rules do not require findings of fact or conclusions of law. See, e.g.,
AAA Commercial Rules. Those supporting "bare" awards argue that a written rationale will make it more likely that courts will inquire into the merits
of the award, contrary to policies of finality underlying modern statutes. They also observe that not being required to write an opinion simplifies the
arbitral task and permits multi-member arbitration panels, like juries, to agree on a decision without concurring on a rationale. See id.
On the other hand, some other commercial arbitration rules call for a statement of the underlying rationale. See, e.g., CPR Rules for Non-
administered Arbitration of Business Disputes, Rule 13.2. Those supporting awards with written rationales argue that a written rationale encourages
more disciplined decision-making and enhances party satisfaction with the result. See Alan Scott Rau, Integrity in Private Judging, 38 S. Tex. L. Rev.
485, 529-39 (1997)(offering arguments in favor of "reasoned" awards). After considering the pros and cons of "reasoned " awards, the Advisory
Committee concluded that arbitrators of Consumer disputes should provide at least a brief written explanation if requested to do so by any party.
As noted in the Comments accompanying Principle 12, the Advisory Committee recognized the dilemma posed by the tension between the desire for
confidentiality in arbitration (including information regarding arbitration awards) and the need to provide Consumers access to information regarding
arbitrators and sponsoring Independent ADR Institutions, including case statistics, data on recent arbitrations and other pertinent information.
Although the Advisory Committee did not address this issue, it recommends that the matter be the focus of serious study by the Advisory Committee
or a similar advisory group, supported by appropriate independent research efforts.
To facilitate requests for reasoned awards, the arbitrator should raise the issue with the parties prior to the arbitration hearing. The matter should be
addressed at the preliminary conference if one is conducted.
A DUE PROCESS PROTOCOL FOR MEDIATION AND ARBITRATION OF CONSUMER DISPUTES
Dated: April 17, 1998
Some of the signatories to this Protocol were designated by their respective organizations, but the Protocol reflects their personal views and should
not be construed as representing the policy of the designating organizations.
The Honorable Winslow Christian
Co-chair
Justice (Retired)
California Court of Appeal
William N. Miller
Co-chair
Director of the ADR Unit
Office of Consumer Affairs
Virginia Division of Consumer Protection
Designated by National Association of
Consumer Agency Administrators
David B. Adcock
Office of the University Counsel
Duke University
Steven G. Gallagher
Senior Vice President
American Arbitration Association
Michael F. Hoellering
General Counsel
American Arbitration Association
J. Clark Kelso
Director
Institute for Legislative Practice
Ken McEldowney
Executive Director
Consumer Action
Michelle Meier
Former Counsel for Government Affairs
Consumers Union
Anita B. Matzen
Executive Director
American Council on Consumer Interests
James A. Newell
Associate General Counsel
Freddie Mac
Shirley F. Sarna
Assistant Attorney General-In-Charge
Consumer Frauds and Protection Bureau
Office of the Attorney General
State of New York
Designated by National Association
of Attorneys General
Daniel C. Smith
Vice President and Deputy General Counsel
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• .0 .
EXHIBIT "F"
I c5
AMERICAN ARBITRATION ASSOCIATION
Construction Arbitration Tribunal
In the Matter of :he Arbitration between:
Re: 14 110 E 02047 05
Creek View Homes, Inc. (Claimant)
and
David L. Stoner and Rose Marie Stoner (Respondents)
AWARD OF ARBITRATOR
I, THE UNDERSIGNED ARBITRATOR, having been designated in accordance with the arbitration
agreement entered into by the above-named parties and dated April 27, 2004, and having been duly sworn
and having heard the proofs and allegations of the parties, and Claimant having made a motion to amend
its claim and the Arbitrator having agreed to consider same, do hereby FIND, as follows:
To Claimant:
Balance owed on contract $5,612.00
Interest calculated from November 1, 2004 through July 31, 2006
at the rate of 1.5% monthly per contract 51,767.78
Segal and expert fees $3,600.00
TOTAL $10,979.78
Accordingly, I AWARD as follows:
Respondents shall pay Claimant the net sum of Ten Thousand Nine Hundred Seventy- Nine
Dollars and Seventy-Eight cents ($10,979.73).
The administrative fees of the American Arbitration Association totaling $950.00 and the compensation
of the ; rbitrata: totaling 5900.00 shall be bome equally by the parties. Therefore, Respondents shall
reimburse Claimant the sum of 5475.00, representing that portion of said fees and expenses in excess of
the apportioned costs previously incurred by Claimant.
This Award is in full settlement of all claims and counterclaim submitted to this Arbitration. All claims
not expressly granted herein are hereby, denied.
ate lit ef ey A. Anderson
I, Jeffrey A. Anderson, do hereby affirm upon my oath as Arbitrator that I am the individual described in
and who executed this instrument which, is my Award.
41te t f , e A.. 7e
EXHIBIT "G"
a:LLJ
cn
T .3
tip
"T
`Y ]
CREEK VIEW HOMES, INC., : IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiffs
V. NO:?p?
DAVID L. STONER and : CIVIL ACTION -LAW
ROSE MARE STONER, his wife, :
Defendants
ACCEPTANCE OF SERVICE
I, Mark W. Allshouse, Esquire, attorney for the Plaintiff in the above-captioned matter,
hereby agree on behalf of my client, Creek View Homes, Inc., to accept service of the Petition to
Vacate Arbitration Award which was filed on September 20, 2006.
t?_
Date: , 2006
1
ark W. Allshouse, + u
833 Spring Road
Shermans Dale, PA 17090
Attorney for Plaintiff
G ca°' ..?t
-TI
r1l
CREEK VIEW HOMES, INC., IN THE COURT OF COMMON PLEAS OF
PLAINTIFF : CUMBERLAND COUNTY, PENNSYLVANIA
V.
NO. 06-5524 CIVIL
DAVID L. STONER and,
ROSE-MAIRE STONER,
HUSBAND AND WIFE
DEFENDANTS CIVIL ACTION - LAW
ORDER OF COURT
AND NOW, this 3rd day of October, 2006, upon consideration of the Petition to
Vacate Arbitration Award filed by the Defendants, IT IS HEREBY ORDERED AND
DIRECTED that:
1. A Rule is issued upon the Plaintiff to show cause why the relief requested by
the Defendants should not be granted;
2. The Plaintiff will file an answer on or before October 23, 2006. The
Prothonotary is directed to forward said Answer to this Court;
3. A hearing on the matter shall be held on December 13, 2006, at 1:30 p.m. in
Courtroom No. 5 of the Cumberland County Courthouse, Carlisle, PA.
By the Court,
?--t UA
M. L. Ebert, Jr., J.
,2f8uglas G. Miller, Esquire
Counsel for Defendants
ark W. Allshouse, Esquire
Attorney for Plaintiff
bas
f p a ?r.. ? ?'d
°? tr ;.a+r7
r?
Mark W. Allshouse, Esquire
Attorney ID # 78014
4833 Spring Road
Shermans Dale, PA 17090
(717) 582-4006
Attorney for Plaintiff
CREEK VIEW HOMES, INC., : IN THE COURT OF COMMON PLEAS
Plaintiff/Petitioner : CUMBERLAND COUNTY, PENNSYLVANIA
V.
NO. 2006-5524
DAVID L. STONER and
ROSE-MARIE STONER,
Defendants/Respondents CIVIL ACTION - LAW
PETITION TO CONFIRM ARBITRATION AWARD
OF THE AMERICAN ARBITRATION ASSOCIATION
AND TO ENTER JUDGMENT
PURSUANT TO 42 Pa. C.S.A. 4 7313
AND NOW, comes Plaintiff, Creek View Homes, Inc., by and through its attorney, Mark W.
Allshouse, Esquire and respectfully files the following Petition to Confirm Arbitration Award and to
Enter Judgment and in support thereof avers as follows:
1. Plaintiff, Creek View Homes, Inc., is a Pennsylvania business corporation with its
principal place of business at 5900 Spring Road, Shermans Dale, Perry County, Pennsylvania
17090.
2. Defendants, David L. Stoner and Rose-Marie Stoner are adult individuals having
an address of 171 Boyer Road, Carlisle, Cumberland County, Pennsylvania 17013.
3. On or about April 16, 2004, the parties entered into an Agreement to Deliver and
Assemble Modular Home, a standardized contract prepared by Plaintiffs, which principally obligated
Plaintiff to deliver and assemble a modular home on land in the names of the Defendants located at 1717
Boyer Road, Carlisle, Pennsylvania. A true and correct copy of the contract is attached hereto and made
a part hereof marked as Exhibit "A".
4. On or about April 27, 2004, the parties executed a Change Order to their contract which
established a payment schedule for the purchase price of the modular home.
5. At the completion of the home, Defendants refused to make final payment of the amounts
due to Builder as required under the payment schedule agreed to by the parties.
6. The Agreement to Deliver and Assemble modular home contained in paragraph
16 a provision requiring arbitration. The parties were required to select a mutual arbitrator and if
they were not in agreement, for AAA Arbitration.
7. The parties were unable to agreed upon a neutral arbitrator, and therefore, AAA
Arbitration was required to resolve the dispute.
8. After several months of attempting to resolve the dispute to avoid the need for
AAA Arbitration, on or about December 8, 2005 Plaintiff filed a Demand for Arbitration to the
American Arbitration Association seeking payment from Defendants in the amount of $8,252.17
together with interest and attorney's fees which continued to accrue.
9. The arbitrator, Jeffrey A. Anderson was ultimately selected by the American
Arbitration Association on or about April 28, 2006.
10. The arbitration hearing in this matter was held on August 7, 2006.
11. On or about August 21, 2006, the arbitrator signed his award which was then
transmitted to legal counsel for the parties. A true and correct copy of the award is attached
hereto and made a part hereof marked as Exhibit "B".
12. Pursuant to 42 Pa. C.S.A. § 7313 an award of an arbitrator can be confirmed by
filing a copy of such award with the Court of Common Pleas for confirmation.
13. This request for confirmation has been filed after the expiration of thirty (30) days
after delivery of notice of the arbitration award by the American Arbitration Association to
Defendants.
14. Respondent, Stoner filed a Petition to Vacate the Arbitration Award. This
Petition is being filed in opposition thereto and it is specifically requested that argument/hearing
be scheduled to address both Petitions simultaneously.
15. Plaintiff seeks the Arbitration Award to be entered as a judgment against
Defendant.
WHEREFORE, Plaintiff/Petitioner, Creek View Homes, Inc. respectfully requests this
Honorable Court to confirm the arbitration award of the American Arbitration Association
entered in this matter and enter the same as a judgment of record against Defendants with the
Cumberland County Prothonotary.
Respectfully submitted,
Date: 0 0&ra?
MatW. Allshouse, Esq ire
AttD # 78 014
4833 Spring Road
Shermans Dale, PA 17090
(717) 582-4006
Attorney for Respondent
AC.IZFF1.1FN" () 1)I:I.iVF.R ANI) A?+SI:N113L1.:? 1\ )DULAR 110N1F
L MNTRAC" 1` PARTIFS
C'Ri?F K N'IFW IIONIES, INC', a Penns,,, I vanta husiIWN-S curhorati(?n, I Iereal'ter ril*erred to as
the builder). of'6077.Spring Road. Shermans Dale, Perry County, Pennsylvanta 17090 and
David L. &, Ruse-Maric Stoner, (hereafter referred to its the buyer(s)), elf 1201 Claremont
Road, ('arfiyle, PA 17013. 1 lerehy auree to build a house oil property located al Rover Road,
Carlisle, Pa 171113 and legally described as: Monroe Township for 1•urther detuii fire Deed.
2. CONTRACT DOCUMENTS
The terilts ()ftllls contract include all docutllents Specifically !istcd below and COIlSt'llilc tile
entire Bross of ilic aurcentent between the parties. The terns of this contract Shall prevail I)\•cr
any conllictinc provision in Ibc docurtunls incanporatcd bj relrrenCe,
it) Ijuildin,,, Specifiumons and Option- 1.?st signed anti dated 04-16-04with 2 nulnhe[' I)f
pa!oeS is hereby Incorporated into this document.
b) floor Plan of* home to be assembled signed and.dated 04-16-114 \\,ith 1 ol'p;tLis iS
hereh}, incorporated into this document.
C) Construction Allowance Statement signed and dated 04-16-04witt 1 ol'pages is
hereby incorporated into this doCLII]tent.
d) Nc?oe signed and dated N/A with N/A oi'papes is hereby incorpor,tlc.l ituo this
docunlctlt.
3. BUILDING PLANS
This Agreement is for the purchase ol'a modular home, -1-110 illtxltdal' hti,titu is Vaetul'y Built and
is not built by [tic builder. •I he liletory has provided rile plants, specifications and drawinpS which
are 111corporalcd by rt_'Icrence into Purtit,*rujill ?, C ontrucl I1u( umi.,Ws, and which are to he (fwd
Isar construction of the house. The huilder makes no representation about the quality of Ihist
plans beyond those specifically provided in the warranties clause Ill this Contract.
4. C'01VIPLi?TiON TIME
Assuming all conditions are satisfied and weather permits work- to he per{ormed under the
contract the work shall commence prompt Y. as soon as po;;atblc, Filter the permils ucccis.it•1 io
start work have hit.•lt issited. and construction money becomes available lift' use \\'ith dais, 111,01CO
.IS deSCrihctl in P0111"1111A 5. it is specifically agreed that nothing, her•in alters the I'act that
sptxific completion dates CAN No 'r be guarantecd and are not part hereof.
Am time lost by mason oCchantics to the contract rn• chances fit plans by ale btayer(s), oilier acts
ol'ilic huycr(s), strikes_ weathfr Conditions not rcasor?ahly an6611,11C(I' or tuts' nlhct' condition nut
\\ilhin the huilder's control Shall be HddCll In the SI1t Cified 11111t: Isar completion. For tally kick,) ;
\\Iticll are not the builders responsibility, the contract shall inerensc by tiny increase. in the
htliIdCI-'N Cost', caaSC:d by 1110 delay
?. (ill NANCIN(; (check the Correct paragraph)
[l'I'lais Agreement is coutitilgent upon the buyer(s) ohtailaiir11 it cOnstrtictit n loan \\ ith
contmitnlent li,r a pernaanerit loan in the amount (W$ dollars. The Builder riser\is thi
ri;;lil (u rc\•ie\\ ,111v terms ur Conditions ol, the construction loan and may, at his discretion chOosc
not to accept (hcm. The Buildcr may •thcn declare this la,reenlunt null Yuld void and boll) pal tips
\\Ill he Dully released from the contract. All Ices and expenses ufohtaininc a loan shalt he borne
Solely and delusively by file hll\•er(S), "file huyel•(S) understands till' constrticholt %vlll not start
and the home \\ill not hC OI'dCred until construction niolley becomes nvailable 1,01. Ilse \\•lilt thi;
lilt) .jkm and necessary buildirit tu•rmils are Issued,
This A\!I rmrnt IS nut contingent utt the buyer(s) oblaininC, it construction loan. The bllver(?o n
are pm , cash Iur the total ol' the Contract price shown in /tctrcat?ru/t/1 tl(>. l }tc-},car gill `
),? r•canh••Irt ,? ,•?. i. 1? y
._ t:-u'11,n,°S ??1? (I),• 1?!'T'=t";?;,?.?c„t iv?ilrtr?t• •nt,{ t• •nt?i?, its •;ittl:tttn'c'ti hiitl) {
1r?t•n,, nl nl•11 ilia ` ill _ }}{n- . ('. ?1
I Ise of* III,-
\ 1 Ft r,l\\
I,untlS tljr .DlhleL the (xtill)u-t-t l
-1
25,71 1.69 No mere than _ .rays alter the cot-noo on ofdw tintndmWin
$7,15(1.12 Payment made prior to the delivery of the home unless otherwise specilied here:Nlat
0.00 Nu more than ?clays aller C0lnpetilion of the well and septic system
0.1111 Itroject Subst:lutially Complete
0.877.31 1•inal payment. within 2 da}-S af1Cr Completion Of rile home per Conti<1Ct specification ,
liiril inspection and :IcCept'luce oil' tile property by the Btlyer.s.
6. C ON'trRAC:T PRICE
The huycr(a) agree tlt hay a total price M129,732.12 WdWrs w the builder Rw COnsittowni ul
the modular home and site improvements, and [lie builder agrees to provide will the labor.
materials. equipment. lools and other services necessary to erect the modular home on Ilse site.
With the 1611o?\ing exceptions: The Builder is not responsible for installing the well septic
Systmt or corlt?ectim-, the home to either system. The builder is responsible for givinpletiol!
of file huu?c from lite sill plate up as Specified 4111 the O"115ll'UCti(n Allowance.
'I he Contract Price includes Alhtwances for Construction costs, these alloccancCS Can not he
guaranteed its [irin prices, due to items beyond the builder's control such <1S ruck, depth of \rater.
weatiler 0r an) uncttntrutiahic circumstance. In the event that a Construction 1tclu exceeds the
altl,wance as shown on the Construction Allowance statement, [he huyCr(S) are responsible for
an) casts ever and above the allowance shown on the `'Construction Allol?since ".
7. PAYMENT I 111oli sizpling this contract the buyer(s) agMCS le pay III,OiiOJIIi dollars to the builder as a
deposit. The: huyer(s) will stake •utternrl payments, construction draws, these interim pad lt?rnts
niust include CURBSIDE FUNDING, or it tninitntuil of 50 of the price 41f the ho??1e. 11111,:ss
prior exception) is obtained and indiCA10d in 1110 draw schedule, as shocN 11 on the 131.1ildi:10 alit
tipccilicutions tlpliuns List of this Agreement, at least 1 day's prior Ill tit' the nu
pane net the hilitdin.: ;ire. I hese inlerim payments will be net le in aceorttance with the dr nc
schedule pi-o itlcd by the mortgage collipatty and approved by the builder.
'I he httyer(,) a`.;rCC to make final paytttent, the balance owing, within -t, two, of the buyerts)' linal
inspection and acceptance or he guoperty. The huycr(s) is not entiticcl to possession until allel
lintel pad Yitcrit. 'I he bit) Cr(s) ul.!reCS nett tO ocCllpy or to lilaci personal ilcros ill the house 111.1 it
the builder has peen paid in I1111. ",'Ile huyei'(s) ag;rcr not to make any moving arranveniews mili!
linal settlement has, nikcn place. ,:nd an occupancy permit, it rccpuired, is obtained. The buyer is
resluil-Cd let 0blairl the OCCUpanCy permit ifOrle is relluired.
The builder assruuCS no resp0nsihilily )iti' any items moved into file h0nte prior to completion or
sett{entent. ;1'he huLCr(,? 11(2gj nett Mace anLpCr?tmal dg!_?is in the hoiiuau?ior to ?o_n1?l?ti?tit cv
linal culcgi>?h1. And daln;wc caused by moving in will he the huyer(s) responsihilily.
ti. ADDITIONAL CONDITIONS
TENNIS O EXCAVATION:
I No nuf t•"nv;lti,ut ttl'ItY•IU'ht'X im.hott it, this !.111111"'wl
2. Noj wk hammer, hydraulic breaker, or other rock removal equipment or Inhor included in this
contract.
;. His Commi. in etudes: (Check the correct paragraph)
E-](",IIIractor Mill Cuulhlct..juh t0 ruuglt ??rade 0111)'. FACilvalCd material will be baeLGlled and
mounded. No finish 1:1IIdSCa!1inr. raking (tr Seeding; included ill this Contract.
1contractor will Colnpieie the hilish grade and Seeding; is SpCCilied in tile C011SIRICtion
Ally "wie shlorneilL bills final grade and scaling, will ill)[ include any bees, sht'ubberN or
landscaping.
I lie Ituilder is not respontsihlc for :lily auto nt steer the allowances such as that lur, bltt nut
hillited to, well cost. S.Ind 11101n1d c,„ t and Memay cost. Any charges exceeding the cost spruced
on the ('ttnstrn 6mi Allowmice munonew referred to it) peivagi-aph it, 'Lire the buyer(s)
rC,ponsiftility. :any ainotmts exceeding, the Construction Allowance are to be. paid by the
httvcrts) wifhiu 7 business days of the additional Cost being incurred by the builder.
Initial I ICrC n A. _ r!. _..._.
Illo'cr is resptlrlsible fiir a .Ind all iltlyCr5' IttgL nt:y Or real estate 1, Aeras,e lies int:urre,l life 1ht
junchase ol'the prolictt_y .md the subsequent consu'uctimrt.
1M.SF.MENT EGRESS:
? I he Nova mWe"Wnd Be hasemem, Mlitat they hale chosen, (itr this ntuduial• borne ha,
tut egrrr,r+, except the mgh the nl0titdar !Conte. lie Buyer(s) are aware that due to this lack tit'
e-ress lilt: hascntcnl is not ntcant Cor hahitation. `l'ire buyer(s) understand that at no time now ml'
ill the fature should the basement tef tllis home be used tier Ilabitill ion.
'I lie buyer(s) have selected to include egress fiom the basement a; described in Ilse
Construction Allo\ullce.
ADDITIONAL \Cll}?F.N}}?N'}'ti & CONI)1. IONS-
Any additional conditions or agreements bctvxen the ltttil&r and 11uyer(s) are listed here: Nuns
9. I.A•!'E PAYMENTS
Paynlcnts not made in a timely Cashion shall incur monthly interest at land ".";t simple interest
I•ronl the day the paymcm is title. "phis e(gnatcs to I f;',St per,'1111111111.
ICthe buyer(s) fail to pay the huHder within 7 clay's ol'the date the paymellt is doe:, tile btliltor
may stop M'ol'l, and may keep the jctb idle until such time as all payments that are then title to the
builder are paid in Dull, If the builder chooses 1101 to stop work afte r a payment delay. this shall
not he t:ousurtled as a waiver 4)I'his rights to stop wort; if !inure p!o'lIIerlts are delayed.
All anorticy Ices incurred by Ilse.builder to collect any sums MN'eet by the buyer(s) tinder this
agwetnent shall he paid by tile hUN'Cr(S).
PI?wv rrs s suizvi ws
'I Ile buyer(s) sluell obtain and l'urnish all necessary sltrweys describing the physical Characteristics
mfthe property. the local ion ofaII utilities a1u1 Hie AM On aFa II easemetits tot I te buildlrlu Ihat
are necessary to allow the builder to complete: his pertiu?o mce. 117addWonal easement, art:
necessary to ctinpfete the work. the I Li)el'(s) Shull obtain these easctrnnts promptly.
II no soil report is ayailable. the lower(s) shall provide one at his(tllclr) own expend'. if a sojl
report is required. I he btliidcr shall obtain building perlltits, licenses, buildini, inspCCtionS and
1ltprtt?;ds required by IOCal last-. I kese pcrntits Will he at tilt latyer(s} expetlse, the btlycr(s) still
pay all lies associated Willi these permits, licenses and inspections.
11'a cotenait or archifecturml review conltltttlee rrctutres the app owd or the Illans and
specifications, file btttCr(sj shall he responsible rue cohtuining these approvals anel paying lien:uty
fire: connected with them.
1 he huyrr(s) is responsible lot- locating, it id marking :dl properly lines wid !narking tiny setbacks
fill' C011SIrtle'1it111, prior to Be builder starting any construction. The buyu(s) agrees the builder
( orally o(his sabcunttactors will not he held responsible for wningly located inlprovertnents of
eunstrurttttn on the premises. If the: hot'el'(s) arc nttt sti•e oi'any'p?•oprrt?- lines they should
Obtain a surrey. IILI)COS) n,rce to ulwain this Survey at no expense to the builder.
11. ('IIANC;E 0RD1,7RS
The W COS) may ""orchnntpes in the work N\ilhitt the terms It Be contMI, Na croft by a prim-
1t rifted order and aVreenleut %Ah tit: huilder that states tote changes to the Contract, the anunrrtt
ufant additioml cost. and (lie additional number 01 Clays to he added tot the contract Completion
d;ttc. I ht_ htl?cr(s) understand No oil IANC;Ia may' I,c'ntade once the manufacturer has
scheduled the home lit- production.
Any t,l'the htn_•ers "M sign tic ch:uVe order and that signature trill he binding upon ull of We
buy crs.
•I he huyrrls) hereby agree it) make Lill retluests lit- change ol'dcrs to the builder, altd 1101 Im issue
instructions it), or o1heok ise ncLotinte fior additional or changed \%ork specifications, t\ ifh. the
huilder's employees or s1111COntradOl•s. Ilse huyer(s) uuLICI-S IRIS that any and all eh:?nl-'e order
ntn"t be in ttriting and siyiled hy' the buyer{s) trod the huildc? to he considered a valid challuc.
Initial IlerC .IV,`,,, , :(:'Jt. ,-
Any change order rcSllltir 1 an additional cost insist be paid for it, Avance (if the change heing
completed.
12. INSURANCE. AND RISK MANAGEMENT
The builder shall obtain all worker,' compensatimi, commercial general liability insurance a lttl
comprehensive liability insurance necessary to protect the. builder Wim claim, fie damages due
hi Wdily injury, including death, and fu?• danm cs to property that nmy a rku no orand during
op;'ations under this contract.
The buyer(,) shall purchase his(thcir) own liability instil"MC: including lire and caslstlt?
insurance to the 1'1111 insurable value orthe house and shall nallle tilt; builder as all additional
insured.
11 AMESS TO 1111? PROPERTY SITE.
lie buyer(s) Will have access to the property and the right to inspect file work in the presence of
the builder.
It the huyer(s) enters the propcrty during the course ofconsirucfion without the lwrlnission trf the
builder he dttes (Hwy do) so at his (their) own risk, and the buyer(,) hereby, release, the builder
and does hereby hind tic huikler harmless front any and all claims tier injury ttr clanlage i0
his(ticir) person or property, and it, the pumm or (,rollerty ora1s lwrson a e nipainyl, the
huyer(,).
Ile Qer(s) agree not to schetdule other work at file site unless builder's ttirilten consent is
obtained. Builder- agrees not (o Wilhht?ld « ritten consent unreasonably. 111.1)ers' agree to
l' 61LIC11111ify builder for all), injury or damage caltscd by Wkmen pctrlurliii fig Mier week nodcr
i• •
` b(IN•er(s) dircctior?.
t t
14. INSI'l?CTION, ACCEPTANCE, FINAL PAYMENT AND POSSESSION
r; At the final inspection. the huyer(s) Will give the holder a signed and dated list that identifies
any alleged dctickricies in 1110 duality Ofthe work or materials.. The builder shall correct : liv
it ms tan tilt huycr(s) list that are, in the good Kim judgment or We huihlrr, deficient in On
duality u(' 111e \?ork and sir-it ialeiials aeccirdin" to the manuiin:lurk:j':. siandards. The builder 0,111
correct Owsr dclects wilh in a reaso?lable little.
;/1 ;\ltrr the Mcis Have ht:en cot rcctcd according to Ilse Illanul:uturer's standard of cnns1 rurti0l1. }
0 the buyer(s) shall sign a coli(icalt: ofacceplance acknowledging that the detects on the hu?rr( )' 1
/l list have hee?1 c0rrecic"I. +
l_
?r t)ccupamcy will he granted hi the buyer(s):dter the huyer(s) "lakes final inspectiot) orate httinc, 1
and makes final payment. and if retplired attcr occupancy perillit is issued. }
It REPi ESENTATIONS AND WARRANTIES
Ilk Qwtvlllcnt contains the entire 1\gmmviem huh coi the Punies anet the Wrnis or this
Ireelncllt are contractual and not rticrcly it recital. This Agreement suprRCCC1e, all previon,
represellLit?ons. nndersiaridings, or agreements, oral. fir ir•ritlelt, between the Parties with
r: specs
to the ,nbicct niatter hereof. No promise or inducement that is not herein expressed has. hero
made lo all) of' [lie Parties and lhost: Parties do not rely upon ant' statement or representation
niadc ley any pcr,un tulle„ hert:itt.
All %\artantics are lindicel to file implied warranlies of habitability atnd workmanlike rontin?cti?n
and :u•.• limiled it, a period ortmt: year from the date of Hie dwe or We (final inspcrtiorl autl final
Ilan teen(. I Ili,, i illitcd warranly is tilt only warranty provided by the numlif "hirer or [Ile
manufactured home.
I his conlract is valid 6w M) days Rom the date tlrsynhg helots, in tilt e%cni that con,truciion
?:cttelrient does not occur \ iihin this sixty date period tllis contract hecntties 111111 anti raid, Illc
t:un,truclioll Will 1101 he ctuliplewd within the 611 claiys, hog+erer the c0ns4111c6011 yettenlcnt must
lake place i.? ithin 60 days to keep fife come:let valid. 'I he prices agreed to are hasckl kill tile
un?l?rs?an?finr 111,111 I.-MIStrnetion sctllcniclo \\ill occur with in oO days front the dmc of ,iviling
this ct,ntract :111d call not he guaranteed al)er- the 60 day period.
16. DISPUTE. S
Inni.i( I lore }kl,l , j• _/ ,+ -''
Should any disputCs arise relative to the performance of this Agreement that the Parties Cal no(
resolve, th(: dispute shall he relfued to a single arbitrator selected by the builder and accgmahlc
to the buyer. Should the Parties not agree, the dispute Amid he std-?jert to arhitration under ankl
in accurd:nice with the rules and regulations of the American Arbitimi(ln Association, AIi
attorney Ices; that shall he incurred in the resolution ofthe dispute shall he the responsibility of
the party not prcvalllll ill the dispute.
17. 11111 C OVF:RNINC LAW AND ASSIGNMENT
'I his agreement Shull Ile cott,ctrucd, imerprCICd, and applied according, to the law of' the
Commonwealth of Penns) Ivania. This Contract shall not he assigned witholli %Nritlcil C??nsrnl til
:all ponies.
18. 1':FFEC" 1 IVE, DATE, AND SICNATURE
is Agrccmrnt draft he eflictive on the date this ,Agreement is signed by NO Panics.
We. the undersi`pned, have read, understood and agree in each of the provisions of this
Agreement and agree to he I.•gally hand herehy and further :1*CIUI()N'IC(ILC receipt ofa copy ol'this
Agre(: non.
Ill ill.Ul' t
Ity on behalf of Creek Vic%\- I Tonnes-, Int:
Date:
BIIY1':1\1 (S)
13}: ???'c? vzz? , L Date:
-/? Dale:
Initial I (ere _+` 5
CHANGE ORDER
The following changes are made to the Agreentent to Deliver and Assemble a Modular Horne
dated 04-16-2064. hetween Creek View Homes hlc., the builder. and David L. & Rose Marie
Stoner, the hUyt•r(5) of 1201 Clarmwit greet, Carlisle, PA 17013:
Cilplace of the I3uyers and Crt--:& View 11,)int:.. ric_c,;tahlishirt?! a jgim ch-egkiW accOulIt too t_h
full amount of the cowructut rice. less the si minL deposit, thw, 101lowim-) ayi-rent schedult- it,
? cc?tc_ : Both 12,11•tiC.S Understand that p1 fy 11e11ts 111t.ist he MaLlC ill thiS Ill-,11111C.1' to prevent clelattlt
on the AGREEMENT TO DELIVER AND ASSEMBLt.: A MODULAR HOME si ?n?L!.
:elated 4-16-2001: ^ --
1
'15.714.69 For the e.xcavation and the Cot.ti]ClatiOll tO he flail 4-26-04.
. -'87.150.12 To be paid in certified !rinds or bank check 4 busillesS clays prior to the delivery of
the hone.
6,877.31 Final payment, within ? days after completion of the home per contract specification LZ
final inspection and acceptance of the property by the Buyers.
This Chance Order shall Oe effective on the date it is sighed by a representative of each part,,
We, the tmdersigned, have read, understood aild agree to the above changes to uur Agrecrlient to
Deliver and Assemble a {V[OdUlar Home and understand the above charges ,Must be paid pritor to
final settlerllirnt.arld (Air occupancy Oftile 110111C.
BUII.,Ul--,R
L.
By= oil behall'orC'reek View I lotmes, Inc
r .
Title: Date: '? YQ J
BUYER(S)
By' vi?L_L. Date: !? uC?
By -77--71 /;"a? Date:
IN WITNESS W1 II7RE01"', the undersigned has executed this instrument this
day of 20
X
X
x
X
Notary Public
AMERIC,MN ARBITRATION ASSOCIATION
Construction Arbitration Tribunal
In the Matter of _he Arbitration between:
Re. 14 110 E 02047 05
Creek View Homes, Inc. (Claimant)
and
David L. Stoner and Rose Marie Stoner (Respondents)
AWWARD OF ARBITRATOR
X, THE UNDERSIGNED ARBITRATOR, having been designated in accordance with the arbitration
agreement entered into by the above-named parries and dated April 27, 2004, and having been duly sworn
and having heard the proofs and allegations of the parties, and Claimant hasping made a motion to amnenz d
its claim and the Arbitrator having agreed to consider same, do hereby FIND, as follows-
To Claimant:
Balance owed on contract 55,612.00
Interest calculated from November 1, 2004 through July 31, 2006
at the rate of 1.5% monthly per contract SI;767.78
Legal and expert fees $3,600.00
TOTAL $10,979.78
Accordingly, I AWARD as follows.
Respondents shall pay Claimant the net sum of Ten Thousand Nine Hundred Seventy- Nine
Dollars and Seventy'-Eight cents ($10,979.78).
The administrative fees of the American Arbitration Association totaling $950.00 and the compensation
of the arbitrate. totaling S9100.00 shall be borne equally by the parties. Therefore, Respondents shall
reimburse Claimant the sum of $475.00, representing that portion of said fees and expenses in excess of
the apportioned costs previously incurred by Claimant.
This Award is in full settlement of all claims and counterclaim submitted to this Arbitration. All clams
not expressly granted herein are hereby, denied.
ate we?, y A. Anderson
I, Jeffrey A. Anderson, do hereby affirm upon my oath as Arbitrator that I am the individual described in
and who executed this instrument which, is my Award.
AZ Ci,14 JP A,4,m4
Date T ?L_ . ,
Mark W. Allshouse, Esquire
Attorney ID # 78014
4833 Spring Road
Shennans Dale, PA 17090
(717) 582-4006
Attorney for Plaintiff
CREEK VIEW HOMES, INC., IN THE COURT OF COMMON PLEAS
Plaintiff/Petitioner CUMBERLAND COUNTY, PENNSYLVANIA
V.
NO. 2006-5524
DAVID L. STONER and
ROSE-MARIE STONER,
Defendants/Respondents: CIVIL ACTION - LAW
CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing document has been duly served upon the
following, by depositing a copy of the same in the United States Mail, first-class, postage
prepaid, as follows:
Douglas G. Miller, Esquire
IRWIN & MCKNIGHT
60 West Pomfret Street
Carlisle, PA 17013
Date: Ib??la?
tz? , C?dri?
Mat W. Allshouse, Esquire
Attorney ID # 78014
4833 Spring Road
Shermans Dale, PA 17090
(717) 582-4006
Attorney for Plaintiff
C-7)
-TI
C t
"
Y"
Mark W. Allshouse, Esquire
Attorney ID # 78014
4833 Spring Road
Shermans Dale, PA 17090
(717) 582-4006
Attorney for Plaintiff
CREEK VIEW HOMES, INC.,
Plaintiff/Respondent
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
V.
NO. 2006-5524
DAVID L. STONER and
ROSE-MARIE STONER,
Defendants/Petitioners CIVIL ACTION -LAW
RESPONSE TO PETITION TO VACATE
AND NOW, comes Respondent, Creek View Homes, Inc., by and through its attorney, Mark W.
Allshouse, Esquire and respectfully files the following reply to Petitioners' Petition to Vacate
Arbitration Award as follows:
1. Admitted.
2. Admitted.
3. Admitted. By way of further response, the parties negotiated the essential terms of the
contract and, upon mutual agreement of all terms, executed it.
4. Admitted.
5. Denied as stated. Respondents executed certain additional documents which were part
of the original contract and changes orders which set forth specifications and construction allowances
negotiated and agreed to by the parties which may be relevant at hearing.
6. Admitted. By way of further response, the contract provision speaks for itself.
7. Denied. Paragraph 7 is a conclusion of law to which no response is necessary. By way
of further response, the arbitration provision in Paragraph 16 of the contract was, indeed, negotiable as
were all provisions of the contract as evidenced by the deletions and amendments made in the contract
and through the change orders set forth in Exhibits "A" and "B" to the Petition. By way of further
response, Petitioners signified their agreement to the arbitration paragraph by specifically placing their
initials at the beginning of said paragraph acknowledging their consent.
8. Admitted. By way of further response, Paragraph 16 does not require Respondent to
advise its customers that they have the right to seek relief in small claims court. By way of further
response, the averments contained in paragraph 6 of Respondent's Reply to this Petition are hereby
incorporated by reference. By way of further response, prior to seeking any American Arbitration
Association arbitration, Respondent continually attempted to have the matter resolved through either
small claims court or Cumberland County Court of Common Pleas, however, Petitioners refused such
attempts. Copies of the relevant correspondence supporting this averment together with the Notice of
the hearing which was actually scheduled in this matter are jointly attached hereto as Exhibit "A".
Despite these attempts by Respondent to have the matter resolved outside of AAA arbitration,
Petitioners continually refused and it was Petitioners' choice to proceed with AAA arbitration.
9. Admitted. By way of further response, under the pertinent terms of the contract, the work
was required to be done in a good and workmanlike manner and to industry standards and Owners'
suggested satisfaction was not necessary.
10. Admitted.
11. Denied as stated. Builder continually agreed to place the money in escrow if the parties
could agree upon a satisfactory list of work to be completed and a satisfactory standard for work to be
completed. By way of further response, Petitioners refused to release such escrow until all work was
completed to "their satisfaction" and not to industry standard as required by the contract. By way of
further response, Respondents obtained counsel to litigate the matter on their behalf, which counsel
continued to attempt to resolve the matter outside of AAA arbitration. By way of further response,
when it became clear after several months that Petitioners were no longer bargaining in good faith,
2
Respondent filed its claim on behalf of Builder through AAA arbitration as demanded by Petitioners'
counsel in the correspondence jointly attached hereto as Exhibit "A".
12. Denied. To the contrary, Builder allegedly sought recovery in an amount of $8,252.17.
By way of further response, at the time of arbitration, that amount had increased due to interest and
attorney's fees which had accrued pending arbitration. By way of further response, Respondent is
without information or belief at to what the $1,050 figure contained in paragraph 12 of the Petition
represents to Petitioner.
13. Admitted. Throughout the pendency of this arbitration, counsel for Petitioners routinely
and adamantly requested AAA arbitration to maintain the procedures that they had previously
designated and, in fact, utilized those procedures in order to argue that Respondents were not entitled to
a second day of hearing.
14. Admitted.
15. Denied. After reasonable investigation, Respondent is without knowledge or
belief as to the truth of the averment contained in paragraph 15 of Petitioners' Petition to Vacate.
Strict proof thereof is demanded at the time of trial if deemed relevant. By way of further
response, neither the Builder, legal counsel, appointed arbitrator or American Arbitration
Association had an obligation or duty to inform or educate Petitioners, or their appointed counsel
of the Supplementary Procedures for Consumer-Related Disputes. By way of further response, it
was Petitioners' counsel's responsibility to know the procedures involved with AAA arbitration
and request those procedures on behalf of his client. By way of further response, Petitioners
never filed a counterclaim in this matter. The only claim pending before AAA was a claim on
behalf of a Builder for non-payment. By way of further response, AAA had discretion to apply
or not to apply the Supplementary Procedures and the parties could bring any disputes
concerning the application or non-application to the attention of the arbitrator. Defendants'
counsel raised no such disputes throughout the pendency, or actual hearing.
16. Admitted. By way of further response, the arbitration clauses in the contract were
not non-negotiable, nor were they primarily non-negotiable. By way of further response, Rule
C-1(a) specifically provides that AAA has the discretion to apply or not to apply Supplementary
Procedures.
17. Admitted. By way of further response, Respondent had continually attempted to
have this matter tried in small claims court and even had a hearing date set, but despite this,
Petitioners refused to attend such hearing and asserted their rights to AAA arbitration. Copies of
the relevant information evidencing such are attached hereto and made a part hereof as Exhibit
"A"
18. Admitted. By way of further response, Petitioner asserted no counterclaim and
the primary claim pending before the arbitrator was that of a home builder seeking payment for
work performed. By way of further response, AAA has discretion as to whether to apply the
Supplementary Procedures.
19. Denied as stated. At the time the Plaintiff filed, Builder's claim was less than
$10,000, although Builder indicated that it would likely be seeking interest and attorney's fees on
such claim which interest and attorney's fees accumulated during the pendency of such claim.
By way of further response, Owners filed no counterclaim.
20. Denied as stated. To the contrary, it is not the responsibility of Respondent, its
legal counsel, the arbitrator, or the American Arbitration Association to inform or educate
Owners or their counsel of any procedures or practices in American Arbitration. By way of
further response, Petitioners' counsel had no problem finding such rules and interpreting them
prior to arbitration to limit arbitration to one (1) day. See Exhibit "B" attached hereto and
incorporated herein. By way of further response, it is the responsibility of Petitioners' legal
counsel to provide competent legal representation which included, among other things, knowing
the laws and procedures of AAA arbitration. By way of further response, AAA had discretion in
applying the Supplementary Procedures.
21. Admitted.
22. Denied. To the contrary, no threats were made.
23. Admitted. By way of further response, the increased length of the one-day hearing
was suggested by the arbitrator in order to allow the parties to reach an amicable agreement with
regard to fees due and owing. By way of further response, it was not the obligation of the
arbitrator and/or Builder's counsel or AAA to inform or educate Petitioners' counsel of the
procedures for AAA arbitration any more than it is the responsibility of this Court of Common
Pleas to inform Petitioner's counsel of the local rules applicable to this Court.
24. Admitted. By way of further response, it is not the obligation of the Builder, its
legal counsel, the arbitrator or American Arbitration Association to inform or educate Owners or
their legal counsel of the rules and processes of AAA. By way of further response, Petitioners'
legal counsel is responsible for knowing the rules and procedures of AAA, just as he is
responsible for knowing the rules and procedures of the Court of Common Pleas.
25. Admitted. By way of further response, the document speaks for itself. By way of
further response, the American Arbitration Association was not the author of the contract
between Respondent and Petitioners. By way of further response, Petitioners had the ability to
negotiate the terms of the agreement as is evidenced, but chose not to, as evidenced by their
signatures directly above the arbitration clause. By way of further response, Respondent
suggested small claims court on numerous occasions and evidence of a hearing date and
Petitioners' refusal to attend such hearing are attached hereto and made a part hereof as Exhibit
«A"
26. Admitted. By way of further response, Principle 11 speaks for itself. By way of
further response, the averments contained in Respondent's answer to paragraph 25 are hereby
incorporated by reference as if set forth at length.
27. Admitted.
28. Admitted.
29. Admitted.
30. Admitted.
31. Admitted. By way of further response, it is believed that the arbitrator provided
an offset credit to Owners which was raised during hearing by Owners thereby reducing the
original amount owed to Respondent under the contract.
32. Admitted. By way of further response, Builder collected no expert fees.
33. Admitted. By way of further response, Respondent submitted a claim in excess of
$18,000 which included costs and expert fees. However, at the time of hearing, Respondent
respectfully addressed to the arbitrator that costs and expert fees were not provided for under the
contract, and therefore, the amount of any award to Respondent should be reduced by that
amount. The award set forth by the arbitrator reflects only the amount due in the legal fees. By
way of further response, the award does not reimburse Respondent for any expert fees.
34. Admitted.
35. Admitted.
36. Admitted.
37. Denied. To the contrary, the award charging Owners with responsibility for
additional arbitration fees or expenses does not violate applicable AAA rules as the AAA rules
6
utilized in this case clearly provide for allocation of arbitration fees. By way of further response,
Petitioners never raised any Supplementary Procedures as issues in this matter and in fact,
diligently argued for the strict application of the Rules which were actually utilized.
38. Admitted. By way of further response, no such fraud, misconduct, corruption or
other irregularity exists.
39. Admitted. By way of further response, there is no proof that the arbitrator
exceeded his authority and Petitioners' claims are frivolous.
40. Denied. Paragraph 40 is a conclusion of law to which no response is necessary.
By way of further response, Petitioners are merely grasping at straws in an attempt to raise issues
which were never raised during the eighteen (18) month pendency of this matter. Moreover,
Petitioners raised issues which were clearly addressed prior to arbitration and refused by
Petitioners, such as resolution of this matter in small claims court or Cumberland County
arbitration. By way of further response, Petitioners are merely trying to avoid payment of the
amounts due as a result of their dissatisfaction of the award of the arbitrator.
41. Admitted.
WHEREFORE, Respondent, Creek View Homes, Inc. respectfully requests this
Honorable Court to deny Petitioner's Petition to Vacate the American Arbitration Association
award entered in this matter.
Date: i 0p (b(v
Respectfully submitted,
eJ lshous e, 6 quire
# 78014
4833 Spring Road
Shermans Dale, PA 17090
(717) 582-4006
Attorney for Respondent
Exhibit "A"
12-01-2004 13:58 FROM-IRWIN & McKNIGHT LAW OFFICES +7172496354
LAW OFFICES
IR WIN & McKNIGHT
WEST POMFRET PROFESSIONAL BUILDING
60 WEST POMFRE'T STREET
ROGER Q. IRWIN CARLISLE, PENNSYLVANIA 17013-3222
MARCUS A WKNIGHT, 117
DOUGLAS G_ MILLER (717) 2451.2353
MATTHEW A. McKNIGHT FAX (717) 249.6354
WWW,144"LAW.COM
November 16, 2004
GANNETT A. DECKER
CREEK VIEW HOMES, INC.
P.O. BOX 174
5900 SPRING ROAD
SHERNLANS DALE, PA 17090
T-961 P.003/007 F-877
L 77 !1max.
[ ,
RAROLD 5. IRWIN (19:5.1977)
flAROLDS IRWIN, M.. t1954-1986)
IRWIN. IRWIN 4IRWIN (1956-7986)
I)MIN, IR1Y1N,&,V1eKNI0HT 09,1619941
IRWIN. AkKN1GIFT A gL1GNF3 (19m-2o0i
IRWIN &.4-rvK IGH7' (2RIJ- )
RE: DAVID L. STONER, SR. & ROSE MARIE STONER
PROPERTY: 171 BOYER ROAD, CARLISLE, PA 17013
Dear Mr. Decker:
Please be advised that our firm represents Mr. and Mrs. David I.- Stoner, Sr. All future
contact and correspondence should therefore be directed to the undersigned.
I have reviewed with our clients the relevant documents in this matter, including the
contract and the extensive "final punch list" dated October 1, 2004- Mr. and Mrs. Stoner have
informed me that throughout the course of this project, there were numerous mistakes made by
your company, as well as several attempts to cover up improper work. Our clients have
indicated that some work had to be redone two, three, and even four times before it was correct.
Much of the work remains incomplete and incorrect. Also significant is the incorrect height on
the steps going to the basement, which at this late date cannot be corrected without significant
cost. I believe a punch list and additional documents which exceed twenty (20) pages, along
with the fact that the home was delivered to the project site on June 23`1 and 24`h, and was still
not complete four (4) months later, supports the position of our clients.
It is also my understanding that you refused to come to the property for an inspection
without being paid additional monies.
Because of the numerous problems and issues that still exist at the property, our clients
no longer have faith in your company's ability and willingness to correct the deficiencies in their
home. They have contacted another individual to estimate the cost to complete the final work
and repair the existing problems as itemized on the punch list and various other documents.
Enclosed please find a copy of his report, with a final total of $21,985.75.
In the event that you still desire to bring this matter before an arbitrator, our clients will
agree to the use of Mark Itilateya, Esquire. The Stoners, however, will be seeking reimbursement
from your company for the cost of the incomplete and incorrect work.
12.01-2004 13:58 FROM-IRWIN & McKNIGHT LAW OFFICES +7172496354 T-961 P.004/007 F-877
CREEK VIEW HOMES, INC.
RE: MR. & MRS. DAVID L. STONER, SR.
November 16, 2004
Page 2 of 2
Our clients will also be objecting to the jurisdiction and venue of District Justice
Frownfelter regarding the recent complaint filed by your company with her office.
I would hope that your company would recognize its obligations in this matter, and
forego any further attempts to pursue final payment in this matter given the extent of the
improper workmanship. If you persist, however, I will be recommending that our clients pursue
all appropriate legal action to recover all damages allowable under Pennsylvania law as outlined
above.
In the event you have any questions or concerns, please do not hesitate to contact the
undersigned, or have your legal counsel do the same.
Very truly yours,
IRWIN & McKNIGHT
Dougl s G. Miller
DGM:tds
Enclosure
cc: Mr. and Mrs. David L. Stoner, Sr.
LAW OFFICES
4
WEST POMFRET PROFESSIONAL. BUILDING
60 WEST POMFRET STREET HAROLAS. IRWIN (1925-1977)
ROGER 0. IRwIN CARLISLE PENNSYLVANIA 17013-3222
HAROW S. IRWIN, JR, (19U.1986)
MARCU5A. McKN1GHT, 111 IRWIN, IRWIN &IRWIN 0056•19M)
D01,T(:LI5 (i. M7T,T$R (717),e49-2353 IRWIN, IRIVIN & XfcKN1GNT (IWlf6-1994)
MA77NETVA. Mi..KN1(3FIT FAX (717) 249-6$54 IRWIN,.WeKh4G111' 4 HUGHES (199d-2noi)
WWW.IMHLAW.COM 1RWI7V,%MrKVI17HT (2003- 1
November 1.6, 2004
VIA FACSIMILE (717) 7$93337 and U.S, MAIL
HONORABLE ELIZABETH FROWNFELTER
P.0, BOX 908
LOXSVIUE, PA 17047
RE: CREEK VIEW HOMES, INC. v. STONER,.,, et al.
No. CV - 0000154 - 04
Dear District Justice Frownfelter:
Please be advised that our firm is legal counsel for Mr. and Mrs. David L. Stoner, Sr.
Our clients recently provided our firm with a copy of the complaint fled by the Plaintiff in the
above-referenced matter.
First, our clients intend to defend this matter, and if necessary will be filing a counter
complaint. Second, and more importantly, it is our clients' position that your office does not
have proper jurisdiction or venue in this matter.
Tile original contract between the parties provides in Paragraph 16 that disputes are first
to be submitted to a single arbitrator. If the parties cannot agree then the matter is subject to
arbitration under the American Arbitration Association rules. A copy of that contract signed by
both parties is enclosed for your reference, In the alternative, proper venue in. this matter exists
in Cumberland County_ The Defendants reside there, the property is there, and the work
performed by the Plaintiff was exclusively in Cumberland. County,
Our office is providing this information to you, as well as to the Plaintiff, in attempt to
avoid needless time and expense for all parties concerned.. I would request that your office make
a determination on these issues in advance of the scheduled hearing. Otherwise, our clients will
incur significant, and in our view unnecessary, expenses. Thank you for your attention to this
matter, and I look forward to your prompt decision.
Very truly yours,
IRWIN & McKNIGHT
Dou as G, Miller
DG!vl:tds
Enclosure
cc: Mr. and Mrs. David L, Stoner, Sr_
Creek View h1h olnes, Inc.
Greason -eaw ?ffice
Post Office Box 385 CcUOS!E, TeM',Sy1-11CJN1-a 17ol.5
Phone_ (717) 241-3030 ? FOX: (71 7I241 -30ti0 YC-QSC,1'0?`aoL.coil"
Noverr?her 24. 2004
Douglas G. Miller, Esquire
60 West Pomfret Street
Carlisle, PA 17013
RE: Creek View v. Stoner
Dear Doug:
Please be advised that I represent Creek 'v'iew 1-!ones, Inc. in the above
referenced matter. In regard to jurisdiction, I disagree with your assessment. I do
believe that Perry County has jurisdiction, but since vve are deaiin g with real estate. i
advised my clients, prior to receiving your letter that jurisdiction also !ies in Cumberland
County. For enforcement purposes, Cumberland County would be the more
appropriate. My clients also contacted DJ Frownfelter's office in regard to transferring
the matter to Cumberland County. They were told the December ; , 2004 hearing would
still occur and the DJ would decide jurisdiction at that time. Your clients will not incur
significant and unnecessary expenses at the DJ's office. If an agreement can be
reached, Creek View will withdraw the matter from Perry County and refile in
Cumberland County.
As to your issue on the American Arbitration Association rules. there is a
provision that allows either party to file in the local district justice office if the claim is
under the jurisdictional amount. My clients have exercised that option, in reality, the
Stoner's owe more than the DJ limit, but my clients were willing to take a loss in order to
have the issue addressed quickly. Prior to filing t-vith the DJ- Creek View tried many
times to work with the Stoners privately. VVhen that failed; Creek View then sent a letter
to the Stoners trying to enforce the arbitration clause. The Stoners have been
completely unresponsive to my clients. It was only then that Creek View filed with the
DJ.
Creek View is willing to withdraw the complaint at CJ F; ov?;?te!ie;'s office if your
clients are willing to move forward in some manner, whether it is continued talks, a DJ
hearing in Cumberland County or exercising the arbitration clause of the contract. The
Stoners continued violation of the contract and ignoring Creek View's attempts to resolve
this matter have caused significant and unnecessary expenses to my client. It is hoped
that we can move forward with this matter in an expeditious manner.
Sincerely Yours,
USDA M. 6REA ON, ESQUIRE
cc: Creek View Homes, Inc.
12-01-2004 13:59 FROM-IRWIN & McKNIGHT LAW OFFICES
VVNIiYfVIVYVGfiLIn Vr r'r_14IVJTL_vhUWM
nnumTv nF;
Mae. MAL Na-; 41-3-05
Cd Name: Han. ELIZABETH R. FROWNFELTER
BOX 908
Adelm"" POST OFFICE BUILDING
LOYSVILLE, PA 17047
Telemnone; (717) 789-4117
FILING COSTS $
SERVING COSTS $
AMOUNT
DATE PAIL}
I I
1 I
TOTAL $
+7172496354 T-961 P.007/007 F-877
(.CIVIL CUUMPLAIIN I
PLAINTIFF NAME aAQ A00FZM
r
DAVID L. AND ROSE-MARIE STONER
171 BUYER BUYER ROAD
L CARLISLE, PA 17013
J
DEFENDANT. VS.
r NAME am AMMESS
CREEK VIEW HOMES, INC.
5900 SPRING ROAD
P.O. BOX 174
L_ SaM MANS DALE, PA 17090 J
Docket No.: CV-0000154-04
Date Filed:
TO THE DEFENDANT: The above named plaintiff (s) asks judgment against you for $ 8,000.00 together with
costs upon the following claim (Civil fines must include citation of the statute or ordinance
violated):
First, we do not believe that your office has jurisdiction in this matter. The
contract between the parties provides for disputes to be resolved either by mediation
or arbitration under the American Arbitration Association rules. We also believe
that the proper venue for any action is in Cumberland County where we reside,
where the property is located, and where the work was performed. iWe respectfully
request either dismissal of transfer of this action to Cumberland County_
Ir. the alternative, Creek View Homes, Inc. did not complete its work under the
terms of the contract, the twenty (2D) page "Final Punch List," and additional
documentation signed by the parties. Furthermore, much of the work was not performed
properly and in a reasonable and workmanlike marnex. The quality of the work does not
meet either current building code requirements or industry standards-and-guidelirps.
The cost: to complete the work and re air the defective workmanship eycceede the District
Jnsti.ce urisdictional limit of $8,000.00.
I, - DAVID . STONER verify that the facts set forth in this complaint are true and
correct to the best of my knowledge, information, and belief. This statement is made subject to the penalties of
Section 4904 of the Crimes Code (18 PA. S.C.A. § 4904) related to unswom falsification to authorities.
(Signature pt P ainfrff or Authorized Agent)
Plain Douglas G. Miller, Esquire
ti's
Attorney; Irwin & McKnight Address: 60 West Pomfret Street
Telephone: (717) 249-2353 Carlisle, PA 17013
IF YOU INTEND TO ENTER A DEFENSE TO THIS COMPLAINT, NOTIFY THIS OFFICE IMMEDIATELY AT THE ABOVE
TELEPHONE NUMBER. YOU MUST APPEAR AT THE HEARING AND PRESENT YOUR DEFENSE. UNLESS YOU DO,
JUDGMENT WILL BE ENTERED AGAINST YOU BY DEFAULT.
If you have a claim against the plaintiff which is within district justice jurisdiction and which you intend
to assert at the hearing, you must file it on a complaint form at this office at least five (5) days before
the date set for the hearing. If you have a claim against the plaintiff which is not within district justice
jurisdiction, you may request information from this office as to the procedures you may follow. if you
are disabled and require assistance, please contact the Magisterial District office at the address
above.
AOPC 3oBA-94
COMMONWEALTH OF PENNSYLVANIA
rnLINTY nF:
Meg. Dist. No.: 41-3-05
DJ Name: Hon. ELIZABETH R. FROWNFELTER
BOX 908
Address: POST OFFICE BUILDING
LOYSVILLE, PA 17047
Telephone: (717) 789-4117
CRo55 - ?a??LJ?NT _
AMOUNT DATE PAID
FILING COSTS $ /D.OD
SERVING COSTS $ 7• Da
TOTAL $ J7.00 /A/ (o / Oy
CIVIL COMPLAINT
PLAINTIFF NAME and ADDRESS
F_ -
DAVID L. AND ROSE-MARIE STONER
171 BOYER BUYER ROAD
CARLISLE, PA 17013
L _
VS.
DEFENDANT:
I- NAME and ADDRESS _
CREEK VIEW HOMES, INC.
5900 SPRING ROAD
P.O. BOX 174
L SAF.RMANS DALE, PA 17090 _
Docket No.: CV-0000154-04 C ?i
Date Filed: ra_ ?_ oy
t i y M. TO THE DEFENDANT: The above named plaintiff(s) asks judgment against you for $ 8,000-00 . together with
costs upon the following claim (Civil fines must include citation of the statute or ordinance
violated):
First, we do not believe that your office has jurisdiction in this matter. The
contract between the parties provides for disputes to be resolved either by mediation
or arbitration under the American Arbitration Association rules. We also believe
that the proper venue for any action is in Cumberland County where we reside,
where the property is located, and where the work was performed. We respectfully
request either dismissal.oi transfer of this action to Cumberland County.
In the alternative, Creek View Homes, Inc. did not complete its work under the
terms of the contract, the twenty (2D) page "Final Punch List," and additional
documentation signed by the parties. Furthermore, much of the work was not performed
properly and in a reasonable and workmanlike manner. The. quality of the. work does not
meet either current building code requirements or industry ''standa3rds-and-guidelines.
The cost to complete the work and repair the defective workmanship exceeds the.District
Justice Jurisdictional limit of $8,000.00.
I, ZfAVID, .STONER verify that the facts set forth in this complaint are true and
correct to the-bast:'f<my> Cnowledgp,,.information, and belief.'Thisstatement is-made.subject?o.:the.penaltiesnf
Section 4904 of the:Ciimes Code-(18 PA: S_.C A: §4904) ; related .to;unsworn falsification to authorities.
f &A,,A PA
(Signature of Plaintiff or Authorized Agent)
Douglas G. Miller, Esquire
Plaintiff's
Attorney: Irwin & McKnight' Address: 60 West Pomfret Street
Telephone: (717) 249-2353
Carlisle, PA 17013
IF YOU INTEND TO ENTER A DEFENSE TO THIS COMPLAINT, NOTIFY THIS OFFICE IMMEDIATELY AT THE ABOVE
TELEPHONE NUMBER. YOU MUST APPEAR AT THE HEARING AND PRESENT YOUR DEFENSE. UNLESS YOU DO,
JUDGMENT WILL BE ENTERED AGAINST YOU BY DEFAULT.
If you have a claim against the plaintiff which is within district justice jurisdiction and which you intend
to assert at the hearing, you must file it on a complaint form at this office at least five (5) days before
the date set for the hearing. If you have a claim against the plaintiff which is not within district justice
jurisdiction, you may request information from this office as to the procedures you may follow. If you
ss are disabled and require assistance, please contact the Magisterial District office at the address
above.
AOPC 30BA-94
COMMONWEALTH OF PENNSYLVANIA
r-nt r,rrv nc• PERRY
Mag. Dist. No:
41-3-05
DJ Name: Hon.
ELIZABETH R. FROWNFELTER
Address BOX 908
POST OFFICE BUILDING
LOYSVILLE, PA
Telephone: (717 ) 7 89 - 4117 17 047
CIVIL ACTION
HEARING NOTICE
PLAINTIFF: NAME and ADDRESS
rSTONER, DAVID L., ET AL.
171 BOYER BUYER RD.
CARLISLE, PA 17013
L
VS.
DEFENDANT: NAME and ADDRESS
FCREEK VIEW HOMES, INC.
5900 SPRING RD-
P.O. BOX 174
LSHERMANS DALE, PA 17090
CREEK VIEW HOMES, INC.
5900 SPRING RD. Docket No.: CV-0000154-04
P.O. BOX 174 Date Filed: 12/06/04 _
SHERMANS DALE, PA 17090 CROSS COMPLAINT 001
A civil complaint has been filed against you in the above captioned case. A hearing has been set in this matter for:
Date: 1/19/05 Place: DISTRICT COURT 41-3-05
BOX 908
Time: POST OFFICE BUILDING
10:00 AM LOYSVILLE, PA 17047
717-789-4117
NOTICE TO DEFENDANT
If you intend to enter a defense to this complaint, you should so notify this office immediately at the above
telephone number.
7
J
YOU MUST APPEAR AT THE HEARING AND PRESENT YOUR DEFENSE. UNLESS YOU DO, JUDGMENT MAY
BE ENTERED AGAINST YOU BY DEFAULT.
If you have a claim against the plaintiff which is within district justice jurisdiction and which you intend to assert
at the hearing, you must file it on a complaint form at this office at least five days before the date set for the
hearing:
Pursuant to Pa.R.C.P.D.J. No. 342(B)(2), no claim by the defendant will be permitted in a supplementary action
filed for failure of judgment creditor to enter satisfaction.
NOTICE TO PLAINTIFF
Pursuant to Pa.R.C.P.D.J. No. 318, you or your attorney will be notified if the defendant gives notice of his/her
intention to defend.
If you are disabled and require a reasonable accommodation to gain access to the Magisterial District Court
and its services, please contact the Magisterial District Court at the above address or telephone number.
We are unable to provide transportation.
DATE PRINTED: 12/06/04 2:23:56 PM
AOPC 30BB-04
COMMONWEALTH OF PENNSYLVANIA
rnI INITY nF• PERRY
Mag. Dist No..
41-3-05
DJ Name: Hon.
ELIZABETH R. FROWNFELTER
Address: BOX 908
POST OFFICE BUILDING
LOYSVILLE, PA
Telephone: (717 789-4117 17047
ATTORNEY DEF PRIVATE
LISA M. GREASON
11 SHERATON DR
P.O. BOX 385
CARLISLE, PA 17013
NOTICE OF CONTINUANCE
PLAINTIFF: NAME and ADDRESS
rSTONER, DAVID L., ET AL.
171 BOYER BUYER RD.
CARLISLE, PA 17013
L
Vs.
DEFENDANT: NAME andN4DHff &WADDRESS
FCREEK VIEW HOMES, INC.
5900 SPRING RD.
P.O. BOX 174
SHERMANS DALE PA 17090
J
L J
Docket No.: CV- 0000154 - 04
Date Filed: 12/06/04
Q
001
Please note that the hearing in the above captioned case, which was scheduled to occur on: 1119105
has been continued to:
Date: 2/11/05 Place:DISTRICT COURT 41-3 - 05
BOX 908
Time: 1:30 PM
POST OFFICE BUILDING
LOYSVILLE, PA 17047
If you have any questions, please contact this office immediately.
Continuance requested bv: GREASON, LISA M
If you are disabled and require assistance, please contact the Magisterial District office at the address above.
1/14/05 Date
My commission expires first
AOPC 616-02
?uvo
?YY3L:t 7:
DATE PRINTED: 1/14/05 2:17:54 PM
ce
CCMMONWEALTH OF PENNSYLVANIA
CUNTY OF: PERRY
41-3-05
ELIZABETH R. FROWNFELTER
BOX 908
POST OFFICE BUILDING
LOYSVILLE, PA
-7171 789-4117 17047
ATTORNEY DEF PRIVATE :
-JI SA M. GREASON
1 SHERATON DR
P.O. BOX 385
CARLISLE, PA 17013
NOTICE OF
SETTLEMENT/WITHDRAWAL
PLAINTIFF: NAME and ADDRESS
FSTONER, DAVID L., ET AL.
171 BOYER BUYER RD.
CARLISLE, PA 17013
L
VS.
DEFENDANT: NAME and ADDRESS
FCREEK VIEW HOMES, INC.
5900 SPRING RD.
P.O. BOX 174
SHERMANS DALE PA 17090
7
7
L J
Docket No.: CV-0000154-04
Date Filed: 12/06/04 `
CROSS COMPLAINT 001
THIS IS TO NOTIFY YOU THAT:
,ter
this case was settled between
2/11/05 the (complaint and/or cross-complaint) filed in this case was withdrawn as against
CREEK VIEW HOMES, INC.
As a resuit, the hearing scheduled 2/11/05
for the above individual has been canceled.
If you ; ave questions regarding this notice, please contact the Magistrial District Court at the address and
eiati;,cne number provided, above.
2/11/05
Date
My commission expires first Monday of January, 2006
733-05
DATE PRINTED: 2/11/05
- 1-1 ?A?iStarY'L}irict Judge
i?
1? ? I rl
4 3 r:
2 : 4 8 3 `'''s
COMMONWEALTH OF PENNSYLVANIA
?O?NTY OF: PERRY
41-3-05
r"!__ Na lie
ELIZABETH R. FROWNFELTER
..,<_ BOX 908
POST OFFICE BUILDING
LOYSVILLE, PA
i
.,, ,717) 789-4117 17047
XTTORNEY FOR PLAINTIFF :
LISA M. GREASON
11 SHERATON DR
P.O. BOX 385
CARLISLE, PA 17013
NOTICE OF
SETTLEMENT/WITHDRAWAL
PLAINTIFF: NAME and ADDRESS
FCREER VIEW HOMES, INC.
5900 SPRING RD.
P.O. BOX 174
LSHERMANS DALE, PA 17090
VS.
DEFENDANT: NAME and ADDRESS
FSTONER, DAVID L., ET AL.
171 BOYER BUYER RD.
CARLISLE, PA 17013
L
7
I
7
Docket No.: CV- 0000154 - 04
Date Filed: 11/05/04
THIS IS TO. NOTIFY YOU. THAT:.. _
Jn
this case was settled between
'G
On 2/11,105 the (complaint and/or cross-complaint) filed in this case was withdrawn as against
STONER, DAVID L
As a result, the hearing scheduled 2/11/05 for the above individual has been canceled.
If you have questions regarding this notice, please contact the Magistrial District Court at the address and
e12,N.?,cne number provided above.
2/11/05
Date _4K?
iy com rission expires first Monday of January, 20:06
' OPC 733 ti5
DATE PRINTED: 2/11/05
j aA ? tMAI Qfigrict Judge
7,1 ',11
Et C? SI
ri.1! )e L?l
2:47. ./
4.•: ??
Clark W. Allshouse, Esquire
4833 Spring Road
Shermans Dale, PA 17090
Phone: (717) 582-4006
Fax: (717) 582-7476
June 28, 2005
Douglas G. Miller, Esquire
IRWIN 8t. MCKNIGHT
60 West Pomfret Street
Carlisle, PA 17013
RE: Creek View Homes, Inc. v. Stoner
Dear Doug:
Please be advised that Lisa Greason, Esquire has turned the above-referenced
matter over to me for representation of Creek View Homes, Inc. in the pending litigation.
I request that you and/or your clients direct all future contacts, correspondence or
telephone calls to me.
It is my understanding that you had orally agreed with Attorney treason that the
issue would be handled through the Court of Common Pleas of Cumberland County.
Could you kindly confirm this oral agreement in writing.
Should I fail to receive your confirmation or objection to the filing of this matter
in the Court of Common Pleas of Cumberland County within ten days of the date of this
letter, I will assume that my understanding of your oral agreement was correct and will
rely upon that understanding in filing a Complaint in the Court of Common Pleas of
Cumberland County thereafter.
Certainly contact me should you wish to discuss this matter further. I look
fo ?vard to your prompt response.
Very truly yours,
r ?
k W. Allshouse
MWA/sa
cc: Lisa M. Greason, Esquire
Mrs. Karen Decker
LAW OFFICES
IRWIN & McKNI GHT
WEST POMFRET PROFESSIONAL BUILDING
60 WEST POMFRET STREET HAROLD S. IRWIN (1925-1977)
ROGER B. IRWIN CARLISLE, PENNSYLVANIA 17013-3222 HAROLD S. IRWIN, JR. (19544986)
MARCUS A. McKNIGHT, Ill IRWIN, IRWIN & IRWIN (1956-1986)
DOUGLAS G. MILLER (717) 249-2353 IRWIN. IRWIN & McKNIGHT (1986-1994)
MATTHEW A. McKNIGHT FAX (717) 249-6354 IRWIN, McKNIGHT & HUGHES (1994-2003)
WWW.IMHLAW.COM IRWIN & McKNIGHT (2003- )
July 8, 2005
MARK W. ALLSHOUSE, ESQUIRE
4833 SPRING ROAD
SHERMANS DALE, PA 17090
RE: CREEK VIEW HOIAES, INC. v. STONER
Dear Mark:
Prior to receiving your correspondence in the above-referenced matter, I had contacted
Attorney Greason. She had indicated that she would be calling me back, but I did not hear from
her and subsequently received your letter. I will direct all future contact to your attention.
With regard to venue, our clients reside in Cumberland County, and the property and
work performed all took place here, so I do not believe there is a question as to proper venue. I
believe there is a significant issue, however, with regard to your indication that a complaint will
be filed in the Court of Common Pleas. The parties' contract provides for arbitration of any
claims, and Mr. and Mrs. Stoner have previously expressed their agreement to arbitrate any
claims. Furthermore, it is our opinion that the parties previously reached a settlement of this
matter. Creek View Homes, Inc., for reasons unknown to me, has apparently decided not to
complete the work that they agreed was not finished and was not accepted by Mr. and Mrs.
Stoner. It is my understanding that they are also now refusing to submit additional warranty
work requests to the manufacturer.
The contract states as follows: "6,877.31 Final payment, within 2 days after completion
Cf tha berr Ar r-ontrart c,?Pr: natinr+ Rr -Finn! ins-in. on and acceptance Of the nrnnn.7ty {Nv the
Buyers." The home has not been completed, your client refused to do a final inspection without
additional payment, and the work has certainly not been accepted by Mr. and Mrs. Stoner. It has
now been nearly six (6) months since your client agreed to fix its errors and complete the
unfinished work. I do not understand their changing positions in this matter, but am certainly
interested in hearing why they now believe a complaint can be filed. I shall await your reply.
Very truly yours,
IRWIN & McKNIGHT
i
G. Miller
DGM:tds
cc: Mr. and Mrs. David L. Stoner, Sr.
Mark W. Allshouse, Esquire
4833 Spring Road
Shermans Dale, PA 17090
Phone: (717) 582-4006
Fax: (717) 582-7476
Mark KhristianLawverSolutions.corn
July 18, 2005
Douglas G. Miller, Esquire
IRWIN & MCKNIGHT
60 West Pomfret Street
Carlisle, PA 17013
RE: Creek View Homes, Inc. v. Stoner
Dear Doug:
I have spoken to my client regarding the fax which you had forwarded to me last
week. Neither my client, nor Attorney Greason, believes that that document represents
an agreement between the parties.
Specifically, that letter contains no guarantee that my client will be paid once the
work has been performed. In addition, there are no subjective criteria for satisfactory
completion of the work. Given your client's continued efforts to add and adjust his
criteria for completion, my client is not willing to perform the work with the sole
determining factor of completion being your client's arbitrary subjective satisfaction.
In the interest of a final attempt to resolve this dispute, my client has advised that
if the following conditions can be agreed upon, it is willing to perform the work outlined
in the faxed correspondence:
1. Final payment due by your client will be escrowed in an account at your
office prior to initiation of the work to ensure that money is available for payment. Proof
of such escrow will be required.
2. An agreement will be drafted containing the provisions of your letter
together with a guarantee that once the work has been completed, the escrow money will
be released to Creek View Homes immediately.
3. A standard must be agreed upon to determine when the work is complete
and the escrow money may be released. This would most reasonably be a third party
who has had no prior relationship, contact or representation of either of our clients.
Attorney Miller
July 18, 2005
Page 2
Should you wish to attempt to address the above-listed issues, certainly contact
me. Otherwise, my clients are prepared to begin the litigation process.
Despite your previous representations to Attorney Greason that this matter could
be handled in the Court of Common Pleas of Cumberland County, I will abide by your
recent representation wherein you insist upon AAA arbitration. If I do not receive a
response to this letter by August 1, 2005, my client will proceed with the arbitration
process and selection of the arbitrators, and both of our clients can begin the outlay of
significant fees, costs and expenses.
Should you wish to discuss other options for resolution of this matter as
alternatives to the excessive costs and expenses to be incurred by both parties through
AAA arbitration, certainly contact me. Otherwise, I will proceed accordingly.
Very truly yours,
.L?
ark W. Allshouse
MWA/sa
cc: Lisa M. Greason, Esquire
Mrs. Karen Decker
1, %
Mark W. Allshouse, Esquire
4833 Spring Road
Shermans Dale, PA 17090
Phone: (717) 582-4006
Fax: (717) 582-7476
Mark@ChristianLg!AyerSolutions.com
Douglas G. Miller, Esquire
IRWIN & MCKNIGHT
60 West Pomfret Street
Carlisle, PA 17013
September 6, 2005
RE: Creek View Homes, Inc. v. Stoner
Dear Attorney Miller:
I have been awaiting your response since your letter of August 12, 2005 wherein
you advised that you anticipated contacting me the following week. Despite what I am
sure are your best efforts, I have not received any response as to your client's position.
Please be advised that my office will be closed from September 9, 2005 through
September 19, 2005. If, upon my return, I have not received your client's position in
writing, I will proceed to file this matter with AAA Arbitration and settlement
negotiations will be halted.
As you have agreed, it is in our clients' best interest to attempt to resolve this
matter as many issues have been agreed upon already. Therefore, I look forward to your
response. Please be advised that this is the final extension of time which will be granted
prior to the litigation process.
Very truly yours,
MWA/sa
cc: Mrs. Karen Decker
r
ark W. Allshous
Mark W. Allshouse, Esquire
4833 Spring Road
Shermans Dale, PA 17090
Phone: (717) 582-4006
Fax: (717) 582-7476
9-ark@ChristianLawyerSolutiopu.com
October 18, 2005
Douglas G. Miller, Esquire
IRWIN & MCKNIGHT
60 West Pomfret Street
Carlisle, PA 17013
RE: Creek View Homes, Inc. /Stoner
Dear Attorney Miller:
My client is not willing to acquiesce to further delay in the resolution of this
matter. Despite attempts to resolve this matter, the parties continue to demonstrate lack
of agreement on both the punch list and the process for resolving these issues.
Therefore, please be advised that pursuant to paragraph 16 of the Agreement to
Deliver and Assemble a Modular Home executed by the parties on April 16, 2004, I am
providing you a name of a "single arbitrator" selected by builder. That arbitrator shall be
Stephen M. Greecher, Jr., Esquire of Tucker Arensberg, 111 North Front Street,
Harrisburg. You are directed to respond within twenty (20) days if this arbitrator is
acceptable to your client.
This 20-day deadline is a fixed deadline. At your objection, or at the expiration of
the 20-day period, this matter will immediately be listed with the American Arbitration
Association and proceed to litigation.
Should you wish to discuss this matter, certainly contact me immediately.
Very truly}} yours,
ark W. Allshouse
MWA/sa
cc: Mrs. Karen Decker
Stephen M. Greecher, Jr., Esquire
I- I
Mark W. Allshouse, Esquire
4833 Spring Road
Shermans Dale, PA 17090
Phone: (717) 582-4006
Fax: (717) 582-7476
Mark aiChristianLawverSolutions. com
Douglas G. Miller, Esquire
IRWIN & MCKNIGHT
60 West Pomfret Street
Carlisle, PA 17013
November 15, 2005
RE: Creek View Homes, Inc. /Stoner
Dear Doug:
Since I have not received as much as a phone call in response to my letter of
October 19, 2005 in which I requested you to provide verification of your client's alleged
medical condition, I will assume that problem has been resolved.
Therefore, in order to be clear on the twenty (20) day fixed deadline, you will
have until December 6, 2005 to advise whether or not Stephen M. Greecher, Jr., Esquire
of Tucker Arensburg is an acceptable arbitrator to you and your client. Your failure to
provide a response will be deemed an objection and the matter will be listed with the
American Arbitration Association and our clients will proceed to incur the extensive
costs which will be involved in this litigation.
I apologize for the abruptness of this letter. However, it is in the best interest of
all parties to have this matter resolved once and for all. There will be no further
extensions provided by my client.
MWA/sa
cc: Mrs. Karen Decker
Very truly yours,
,r
ark W. Allshouse
Mark W. Allshouse, Esquire
4833 Spring Road
Shermans Dale, PA 17090
Phone: (717) 582-4006
Fax: (717) 582-7476
Mark(&ChristianLawyerSolutions. com
CHRISTIAN LAWYER SOLUTIONS, LLC
July 28, 2006
VIA FACSIMILE (249-6354)
CONFIRMED U.S. MAIL
Douglas G. Miller, Esquire
IRWIN & MCKNIGHT
60 West Pomfret Street
Carlisle, PA 17013
RE: Creek View Homes, Inc./Stoner
Dear Mr. Miller:
In reply to your letter of July 26, 2006, you are certainly entitled to your opinion.
What you have characterized as "grandstanding", I characterize as my necessity to
compel you and your clients to pay attention to the matters at hand and proceed with
arbitration. Your delay in this matter is all too evident.
Also, pursuant to your letter, let us set the record straight:
I have attached hereto your correspondence of July 8, 2005 wherein you
take "significant issue" with the placement of this matter in Cumberland
County Court of Common Pleas. Now, 18 months later, you are state that
you had agreed to it. That portion of your letter is clearly a
misrepresentation.
2. Mark Mateya, Esquire, refused to perform any arbitration services as a
result of a pre-existing relationship with my client which he felt would be
a conflict of interest. Therefore, there was no refusal to proceed with the
arbitrator by Creek View. Again, your characterization is a
misrepresentation since I had advised you of this almost a year ago.
Should you feel the need to reply, please get your facts straight.
l ,
Attorney Miller
July 28, 2006
Page 2
I look forward to receiving your information and hope that you will attempt to
meet the deadlines as set by the arbitrator.
Very truly yours,
G 4 G ~ fI
f ark W. Allshouse;
i
MWA/sa
Enclosure
cc: Ms. Shandell Ruiz (via facsimile)
Mrs. Karen Decker (via facsimile)
Exhibit "B"
j .
JUI-27-2006 11:50AM FROM-IRWIN & McKNIGHT LAW OFFICES +7172496354
LAW OFFICES
WEST POMFRET PROFESSIONAL BUILDING
60 WEST POMFRET STREET
ROGER B, IRWIN CARLISLE, PENNSYLVANIA 17013-3222
MARCUS A. McICNIGHT. III
,DOUGLAS G. M14 Lr=R (777} 249.2363
MA7THEWA. McKNICHT FAX (717) 249-6354
WWW.IMHL4W.COM
July 26, 2006
VIA FACSIMILE AND U.S. MAIL (717) 582-7476
MARK W. ALLSHOUSE, ESQUIRE
4833 SPRING ROAD
SHERMANS DALE, PA 17090
RE: CREEK VIEW HOMES, INC. v. STONER
Dear Mark:
T-603 P.002/003 F-469
HAROLD S. IRWIN (AUS•1977)
WOW S. IRWIN. JR. (1954-19mi
IRWIN, IRWIN 4 IRWIN I19S6-1986!
IRWIN,IRw1N.4McMWOHT (1986-1994)
IRW14V, McKNIGHT & HUGHES (194.1-3009)
IRWIN & Mc1CNICHT (3003• j
I am in receipt of your letter dated July 20, 2006. 1 immediately tried to contact you by
telephone, but to date have not received a reply to my voicemail message.
I am simply perplexed by your accusations. It was your clients who prepared the contract
in this matter, and your clients who refused multiple requests to repair or ensure repair of what I
previously characterized as obvious problems, but not terribly complicated fixes. It was also
your clients who elected not to use one of the previous mediators they had suggested, but instead
to file for arbitration with AAA. I had also previously offered to allow this matter to proceed
before a Magisterial District Judge as long as the complaint was filed in Cumberland County
where the work was performed.
Your assertion that my clients have intentionally refused to follow AAA policies ii
simply wrong in my opinion. To that end, I offer an overview of the AAA Construction and
Industry Arbitration Rules and Mediation Procedures:
1. Fast Track Procedures govern cases involving claims of no more than $75,000.00;
2. Rule F-8 provides that "where no party's claim exceeds $10.000, exclusive: of
interest and arbitration costs, and other cases in which the parties agree, the
dispute shall be resolved by submission of documents...";
3. Rule F-10 states that "Generally, the hearing shall not exceed one day.";
4. Furthermore, Rule F-10 provides that each party "shall have equal opportunity to
submit its proofs and complete its case," and that "for cause shown, the arbitrator
may schedule one additional hearing day within seven clays after the initial day of
hearing";
Your client's claim in this matter, exclusive of interest and costs, does not exceed
$10,000.00. As outlined in my letter dated June 8, 2006, my clients are not in agreement to pay
the costs for a second day of hearing given the small size of the claim. Mr. and Mrs. Stoner have
already gone above the requirement of AAA Rules and Procedures by agreeing to have a one day
heating. You should be well aware that this is more than double the amount of time that this
R *;
JUL-27-2006 11:51AM FROM-IRWIN & McKNIGHT LAW OFFICES +7172496354 T-603 P-003/003 F-469
MARK W. ALLSHOUSE, ESQUIRE
RE. CREED VIEW HOMES, INC.
July S. 2006
Page 2 of 2
case would be allotted if it had been filed with the local Magisterial District Judge, or even a
board of arbitration under the Cumberland County compulsory arbitration proceedings. I believe
the goal of AAA is to provide prompt and cost effective resolution of claims. Your insistence on
a second day of hearing means an additional cost of $1,400.00. Given the small nature of the
claim and previously stated rules that your clients selected in their contract, I fail to understand
your legal or practical justifications.
Finally, each side apparently only has one or two experts, so I do not understand your
insistence on the necessity of a second day. This matter has dragged on quite long enough. My
clients have agreed to have a one day hearing which is more than I believe they are required to
do under the rules your clients selected. I would prefer to avoid further grandstanding and allow
this matter to proceed in a reasonable fashion. One day is certainly enough time for that to
occur.
Very truly yours,
IRWIN & McKNIGHT
oug G. Miller
DGM:tds
CC' Mr. and Mrs. David L. Stoner, Sr.
Mark W. Allshouse, Esquire
Attorney ID # 78014
4833 Spring Road
Shermans Dale, PA 17090
(717) 582-4006
Attorney for Plaintiff
CREEK VIEW HOMES, INC., : IN THE COURT OF COMMON PLEAS
Plaintiff/Respondent : CUMBERLAND COUNTY, PENNSYLVANIA
V.
NO. 2006-5524
DAVID L. STONER and
ROSE-MARIE STONER,
Defendants/Petitioners CIVIL ACTION -LAW
CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing document has been duly served upon the
following, by depositing a copy of the same in the United States Mail, first-class, postage
prepaid, as follows:
Douglas G. Miller, Esquire
IRWIN & MCKNIGHT
60 West Pomfret Street
Carlisle, PA 17013
Date: (0?(Q (O(p
r
k?. %
Mar c W. Allshouse, E quire
Att rney ID # 78014
4833 Spring Road
Shermans Dale, PA 17090
(717) 582-4006
Attorney for Plaintiff
CREEKVIEW HOMES, INC. : IN THE COURT OF COMMON PLEAS OF
Plaintiff/Respondent: CUMBERLAND COUNTY, PENNSYLVANIA
V.
06-5524 CIVIL TERM
DAVID L. STONER and
ROSE-MARIE STONER,
Husband and Wife, CIVIL ACTION - LAW
Defendants/Petitioner:
IN RE: ARGUMENT/BRIEFING SCHEDULE
ORDER OF COURT
AND NOW, this 13th day of December, 2006, after
argument in the above-captioned matter, the Petitioner is
directed to file a brief in support of his position on or
before the close of business on January 12, 2007.
Respondent shall file a reply brief by January 26, 2007.
By the Court,
1?k-? UA, V
M. L. Ebert, Jr.,
Douglas Miller, Esquire
For Petitioner/Defendants,\
Mark Allshouse, Esquire /
For Respondent/Plaintiff I
mtf
"! 211 sd 6 1 0-o SON
CREEK VIEW HOMES, INC., IN THE COURT OF COMMON PLEAS OF
PLAINTIFF CUMBERLAND COUNTY, PENNSYLVANIA
V.
NO. 06-5524 CIVIL
DAVID L. STONER and,
ROSE-MAIRE STONER,
HUSBAND AND WIFE
DEFENDANTS CIVIL ACTION - LAW
ORDER OF COURT
AND NOW, this 7th day of March, 2007, upon consideration of the Petition to
Vacate Arbitration Award, IT IS HEREBY ORDERD AND DIRECTED that a status
conference shall be held with counsel on Tuesday, April 3, 2007 at 8:30 a.m. in
chambers of Courtroom No. 5 of the Cumberland County Courthouse, Carlisle,
Pennsylvania.
/ark W. Allshouse, Esquire
7ou rn ey for Plaintiff
glas G. Miller, Esquire
Attorney for Defendants
By the Court, ---L UA
S\ M. L. Ebert, Jr., J.
r1.`s.1 s?(J
CREEK VIEW HOMES, INC., IN THE COURT OF COMMON PLEAS OF
PLAINTIFF CUMBERLAND COUNTY, PENNSYLVANIA
V.
NO. 06-5524 CIVIL
DAVID L. STONER and,
ROSE-MARIE STONER,
HUSBAND AND WIFE
DEFENDANTS CIVIL ACTION - LAW
ORDER OF COURT
AND NOW, this 6`h day of June, 2007, after status conference with counsel in the above
referenced case on April 3, 2007, the Court having reviewed the proposed interrogatories to be
directed to AAA Arbitrator, Jeffrey Anderson, by both counsel,
IT IS HEREBY ORDERED AND DIRECTED that the following interrogatories will be
posed to the Arbitrator:
1. In your award of arbitration dated August 21, 2006, under the heading "Expert and
Legal Fees", an award of $3,600.00 (thirty-six hundred) was made. Did any portion of that
award constitute expert fees? If so, please state the amount representing expert fees and the
amount representing legal fees.
2. Please provide a specific break down of costs paid by each party to the American
Arbitration Association prior to the award dated August 21, 2006, and the basis for each cost
(i.e. filing fee, arbitration fee, etc.).
3. Please explain the amount of fees owed to both the American Arbitration Association
and to you as the Arbitrator by the parties, and include your rationale for the allocation of the
fees owed by each party as set forth in the award.
4. Were any additional fees charged over and above the standard one day hearing fee
due to the anticipated "extended day" of the hearing in this matter? If so, please state the
amount of the additional fee.
By the ?AA \
M. L. Ebert, Jr., J.
?z :Z Wd 9- N"np LOU
?Hi ?O
N Mark W. Allshouse, Esquire
Attorney for Plaintiff
Douglas G. Miller, Esquire
Attorney for Defendants
bas
C ? U7
CREEK VIEW HOMES, INC., IN THE COURT OF COMMON PLEAS OF
PLAINTIFF CUMBERLAND COUNTY, PENNSYLVANIA
V.
NO. 06-5524 CIVIL
DAVID L. STONER and,
ROSE-MAIRE STONER,
HUSBAND AND WIFE
DEFENDANTS CIVIL ACTION - LAW
ORDER OF COURT
AND NOW, this 7"' day of September, 2007, the Court having received the final
responses to the 4 interrogatories posed in the Order of Court dated June 6, 2007,
IT IS HEREBY ORDERED AND DIRECTED that a status conference on this
matter is set for Friday, October 5, 2007, at 2:30 p.m. in chambers of Courtroom No. 5 of
the Cumberland County Courthouse, Carlisle, Pennsylvania.
By the Court,
M. L. Ebert, Jr.,
Mark W. Allshouse, Esquire
Attorney for Plaintiff
Douglas G. Miller, Esquire
Attorney for Defendants
(20pi'r,S mU CCCL
Q??r?o7
J.
40
CREEK VIEW HOMES, INC., : IN THE COURT OF COMMON PLEAS OF
PLAINTIFF CUMBERLAND COUNTY, PENNSYLVANIA
V.
NO. 06-5524 CIVIL
DAVID L. STONER and,
ROSE-MAIRE STONER,
HUSBAND AND WIFE
DEFENDANTS CIVIL ACTION - LAW
ORDER OF COURT
AND NOW, this 10'h day of October, 2007, upon consideration of the Defendant's
Petition to Vacate Arbitration Award, Plaintiff's Answer thereto, the Arbitrator's Answer to
Interrogatories posed in this Court's order of June 6, 2007, and after status conference
with Counsel on October 5, 2007;
IT IS HEREBY ORDERED AND DIRECTED that Defendant's Petition to Vacate
Arbitration Award is DENIED.
By the Court,
&,M'a*rk W. Allshouse, Esquire
Attorney for Plaintiff
Attorney for Defendants --', ?
ouglas G. Miller, Esquire
N, M. L. Ebert, Jr., J.
+r
9 S •6 WV S 1 130 CQOZ
AdVl&\'JH_! iEd 3JHi JO
CREEK VIEW HOMES, INC.
Plaintiff,
V.
DAVID L. STONER and ROSE-MARIE
STONER, Husband and Wife
Defendants.
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
NO. 2006 - 5524 CIVIL TERM
CIVIL ACTION -LAW
PRAECIPE TO SETTLE AND DISCONTINUE
TO CURTIS R. LONG, PROTHONOTARY:
Kindly mark the above-captioned matter as settled and discontinued, and any judgment
incident thereto as paid in full.
Date: 4 J - J() _'2007
Respectfully Submitted,
1
?x
rk Allshouse, E quire
upreme Court I.D. N6. 78014
833 Spring Road
Shermans Dale, PA 17090
Attorney for Plaintiff
:LAI
4?