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HomeMy WebLinkAbout98-2551 civilLEWIS R. and MARGUERITE CRULL : IN THE COURT OF COMMON PLEAS OF ................ : cUMBERLAND .... COUNTY, PENNSYLVANIA · - : V. GLORIA MARIE KINBACK and CALLEN KINBACK, INC. : NO. 98-2551 CIVIL TERM : : CIVIL ACTION - LAW IN RE: PLAINTIFF'S MOTION TO COMPEL ARBITRATION BEFORE GUI DO, J. AND NOW, this ORDER day of SEPTEMBER, 1998, the parties are directed to forthwith proceed with binding common law arbitration. By the Edward E. Guido, J. Eric J. Wiener, Esquire For the Plaintiffs James J. Dodd-o, Esquire For the Defendants :sld LEWIS R. and MARGUERITE CRULL : IN THE COURT OF C~ON PLEAS OF : CUMBERLAND COUNTY,~'~ENNSYLVANIA V. : GLORIA MARIE KINBACK and CALLEN KINBACK, INC. : NO. 98-2551 CIVIL TERM : : CIVIL ACTION - LAW IN RE: PLAINTIFF'S MOTION TO COMPEL ARBITRATION BEFORE GUIDO, J OPINION AND ORDER OF COURT On June 16, 1998, Plaintiff filed a Motion to Compel Binding Arbitration. Defendants eventually filed a reply opposing the motion. A hearing was held before this Court on September 3, 1998, at which time we made certain findings of fact. The parties were directed to submit briefs based upon those findings of fact. The briefs have been filed and this matter is now ready for disposition. FINDINGS OF FACT At the hearing of September 3, 1998, we made the following findings of fact: 1) In November of 1997 David Harber of Mutual Benefit Insurance Company [the insurer for the Defendants] entered into settlement negotiations with Plaintiffs' counsel, Eric Wiener, Esquire. 2) When it became apparent that the case was not going to be settled, Mr. Harber proposed that the matter be submitted to an alternative dispute resolution program such as mediation or arbitration. 3) Mr. Wiener indicated that because of his clients' ages, he NO. 98-2551 CIVIL TERM ~ would only consider an a~ternative dispute resolutioni~if ~it ~wo~ld be binding. He proposed binding arbitration. ~ 4) Mr. Harber indicated that he would have to check with his supervisor since his company did not normally look favorably upon binding arbitration. 5) In late November or early December of 1997, Mr. Harber telephoned Mr. Wiener and advised him that he had authority to enter into binding arbitration. Mr. Wiener accepted the offer and the parties agreed to submit the dispute to binding arbitration. 6) Mr. Wiener confirmed the agreement by letter dated December 4, 1997, to Defendants' attorney, Peter Speaker, Esquire. This letter was copied to Mr. Harber. . 7) In March of 1998, Mr. Harber's supervisor advised Mr. Wiener that the company had no intention of submitting the matter to binding arbitration. 8) The Court specifically finds as a fact that an agreement to arbitrate was entered into between Mr. Harber and Mr. Wiener. However, no agreement existed as to the type of arbitration, i.e., statutory, contractual, etc.. DISCUSSION The only issue raised by Defendants in their brief is that the agreement to arbitrate is not complete (and therefore not enforceable) because it did not contain a provision regarding the .type of arbitration. However, the Defendants' argument fails in light of the~niform'-Arbitration Act which specifically provides that an agreement to arbitrate is conclusively presumed to be an agreement for common law arbitration unless it is in writing and expressly provides for statutory arbitration. See 42 Pa. c.a.A. § 7302. After hearing the testimony, it was clear to us that the Defendants' insurer and Plaintiffs' counsel had reached an agreement to submit the controversy to binding arbitration. However, it was equally clear that there was never any discussion regarding the type of arbitration, i.e. statutory or common law. We are now satisfied that the missing term of the agreement is implied by law. Therefore, we direct that the matter should be submitted to common law arbitration.~ ORDER AND NOW, this ~~~~. day of SEPTEMBER, 1998, the parties are directed to forthwith proceed with binding common law arbitration. Eric J. Wiener, Esquire For the Plaintiffs James J. Dodd-o, Esquire For the Defendants By the Court, /s/ Edward E. Guido Edward E. Guido, J. :eld ~At the conclusion of the hearing we also had some concerns as to the validity of Defendants' argument that their insurer could not waive a right to a jury trial on their behalf. However, since the Defendants have chosen not to brief this issue, we will deem it to have been abandoned.