author: BURR, J.,

text:
    Progressive Insurance Co. v. Glenn
    C.P. of Delaware County,
    no. 98-6287.

      Kevin B. Quinn, for plaintiff.

      Scott A. Bennett, for defendant Glenn.

      Albert E. Hart Jr., pro se and for defendant Steven M. Hart.

      John P. Kamstra, for defendants Great Northern Insurance Co. and Federal Insurance Co.

      Theodore Winicov and Andrew J. Reilly, for defendant Harleysville Insurance Companies.
    July 27, 2000
   BURR, J.,

Defendant, Great Northern Insurance Company, appellant, alone appeals from a declaratory judgment entered January 12, 2000, providing that policies of insurance issued by plaintiff, Progressive Insurance Company and The Harleysville Insurance Companies are not responsible for coverage of injuries to defendant Tara Glenn, which occurred April 18, 1997, when the defendant, Steven Hart, riding as a passenger, touched or grabbed the steering wheel of the vehicle being operated by Ms. Glenn. The vehicle was owned by Ms. Glenn’s father. (Glenn v. Hart, no. 97-16699, the Court of Common Pleas of Delaware County, PA.)

Progressive initiated this action seeking to avoid responsibility for this claim contending that Steven Hart grabbed the steering wheel of Ms. Glenn’s vehicle causing it to turn on its side, injuring Ms. Glenn. Progressive maintains that Ms. Glenn’s injury was caused by a “nonpermissive use” pursuant to a provision in the omnibus clause of the automobile policy it issued to Steven Hart’s father, the defendant Albert Hart Jr. (Progressive policy no. 50032151-0, stipulation of facts, exhibit A.) Progressive also sought to have the homeowner’s policy, issued by appellant, Great Northern and the excess coverage policy issued by defendant, Federal Insurance Company, held responsible for the damages from this incident. Ms. Glenn’s father owned Interstate Outdoor Advertising Inc., which owned a policy issued by Harleysville insuring the vehicle operated by Tara Glenn at the time of this incident.

Progressive’s insurance policy provides that it “will pay damages ... for which an insured person is legally liable ... resulting from the ownership, maintenance or use ... of a car ... but no person shall be considered an insured person if the person uses a vehicle without permission of the owner of the vehicle.” The gist of Progressive’s position is that Steven Hart had permission to be in the car as a passenger only, but did not have permission to touch the steering wheel. Therefore, when Steven Hart touched or grabbed the steering wheel, this was a “nonpermissive use” of the vehicle, and Progressive was not liable pursuant to its policy of insurance. Harleysville, although not an appellant here, raised the same argument based on similar language in its insurance policy, citing as authority, General Accident Insurance Company of America v. Margerum, 375 Pa. Super. 361, 544 A.2d 512 (1988).

There is no dispute in this record that Steven Hart had Ms. Glenn’s permission to use Ms. Glenn’s vehicle as a passenger. The issue of whether or not Mr. Hart’s action was “use” pursuant to appellant Great Northern’s policy, so as to preclude coverage, has not been litigated or pled in this matter. Great Northern has never filed a counterclaim or cross-claim seeking any such relief nor has it filed an indemnity action, nor a separate declaratory judgment action seeking clarification of its rights. Pa.R.C.P. 1030,1031,1501,1601 and 2252(a)(4). Great Northern’s only argument, presented in its brief in support of a motion for reconsideration of the court’s order, focused upon why the automobile policy should be held to cover this incident, but not upon why Great Northern’s homeowner’s policy should not. See e.g., Erie Insurance Exchange v. Transamerica Insurance Company, 516 Pa. 574, 533 A.2d 1363 (1987); Motorists Mutual Insurance Company v. Kulp, 688 F. Supp. 1033 (1988), affirmed, 866 F.2d 1411 (3d Cir. 1988). There remains the question as to whether Steven Hart was given permission to grab the steering wheel while Tara Glenn was driving.

Deposition testimony by Steven Hart was that he couldn’t “explain the unexplainable,” nor could he remember why he touched the steering wheel. He did admit intentionally touching the steering wheel. (See Steven Hart’s deposition transcript at exhibit D to Tara Glenn’s brief in response to declaratory judgment complaint, pp. 39, 64.) The parties have stipulated that Steven Hart had the permission of Tara Glenn to be a passenger in this vehicle at all relevant times. The parties have also stipulated that Steven Hart neither asked for, nor received, permission of either Ms. Glenn or her father to touch or grab the steering wheel prior to this incident. Ms. Glenn testified, by way of deposition, that Steven Hart reached over and grabbed the steering wheel when it was at a 12 o’clock position and turned it to the right to a 6 o’clock position. He gave her no warning. Both Ms. Glenn and Steven Hart agree that, even prior to this incident, they were neither fighting nor fooling around in any manner. Mr. Hart did not grab the steering wheel at Ms. Glenn’s request. There was no emergency. The weather was clear, traffic light, and there were no obstructions or distractions on the road.

It was agreed to by all parties, at the time of trial, that this matter be disposed of by way of stipulation of facts and briefs. The stipulation of facts and the court order are matters of record. Appellant, Great Northern, in its concise statement of matters complained of on appeal, contends that Steven Hart was entitled to coverage under the Progressive and Harleysville policies. Appellant argues that coverage ought not to be denied “for the manner of use,” and in light of the Pennsylvania Motor Vehicle Financial Responsibility Law. Appellant incorrectly concludes that the court’s decision was based upon Steven Hart’s negligent use of the vehicle in question.

WAIVER OF ISSUES

Appellant did not seek, in this action, a declaration of its own rights, but now contends on appeal that the court’s judgment was in error because it failed to address appellant’s rights. Although appellant filed boilerplate assertions concerning its clauses excluding coverage, the issue was neither tried nor argued. All of the materials submitted by appellant related solely to its position as to how the automobile insurance carriers’ policies ought to be interpreted, and only boilerplate statements were made as regards its own exclusionary clause. Another boilerplate contention is the unsubstantiated allegation that “no party sought coverage for Steven Hart under the Great Northern policy.” (Concise statement, paragraph 11.) If that is so, it defies credulity that defendant has taken no steps to remove itself as a party to this action.

Where an insurer relies on a policy exclusion as the basis for its denial of coverage, the insurer has asserted an affirmative defense and, accordingly, bears the burden of proving such defense. Madison Construction Co. v. Harleysville Mutual Insurance Company, 557 Pa. 595, 735 A.2d 100 (1999); Erie Insurance Exchange v. Transamerica Insurance Company, supra, citing Miller v. Boston Insurance Company, 420 Pa. 566, 570, 218 A.2d 275, 277 (1966). See also, Armon v. Aetna Casualty & Surety Co., 369 Pa. 465, 469, 87 A.2d 302, 304 (1952). Appellant has failed to meet its burden in this case.

This court is granted jurisdiction only to decide matters properly placed before it by the parties, discernible from the pleadings, the available evidence, proffered legal argument and, in this case, the stipulation of facts submitted by the parties. A fair review of this record will evince that the issue presented to this court was whether the essentially identical clauses concerning permissive use in the omnibus clauses of the plaintiff’s and the defendant Harleysville’s policies preclude coverage for this incident. The appellant’s responsive pleadings merely alleged a denial of coverage and, in the alternative, that if there was coverage, that appellant’s policy was in excess of that coverage provided by the automobile policies. Appellant tried and argued only the issue of “permissive use” under the automobile policies. No party appropriately raised an issue as to coverage pursuant to Great Northern’s homeowner’s policy, nor was any evidence introduced as relates thereto. Therefore, since there was neither legal nor evidentiary support for the ruling that appellant now seeks, and which appellant contends that this court improperly omitted from its order, appellant has failed to meet its burden of preserving those issues for appeal. Commonwealth ex rel. Robinson v. Robinson, 505 Pa. 226, 478 A.2d 800 (1984).

It is respectfully submitted that appellant’s contention that this court erroneously failed to determine the rights and obligations of Great Northern has been waived. Pa.R.C.P. 227.1; Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 255, 322 A.2d 114 (1974); Noecker v. JohnsManville Corp., 355 Pa. Super. 463, 471, 513 A.2d 1014, 1018 (1986); Takes v. Metropolitan Edison Co., 440 Pa. Super. 101, 655 A.2d 138 (1995).

APPELLANT’S STANDING TO APPEAL

A party may appeal only from an adverse decision. Donegal Mutual Insurance Company v. Eyler, 360 Pa. Super. 89, 519 A.2d 1005 (1987). Black’s Law Dictionary (6th ed. 1990), defines an “aggrieved party” as “[o]ne whose legal right is invaded by an act complained of, or whose pecuniary interest is directly affected by a decree or judgment.” Thus, a party has standing when it is aggrieved by having been directly and adversely affected by a judgment, decree or order, and has some pecuniary interest which is thereby injuriously affected, or suffers from the infringement or denial of its legal rights. See Atlee Estate, 406 Pa. 528, 178 A.2d 722 (1962); Prior v. Borough ofEddystone, 30 Pa. Commw. 536, 374 A.2d 981 (1977). Pa.R.A.P. 501 limits the right of appeal to “any party who is aggrieved by an appealable order.” (emphasis added) The issue of whether or not a party is aggrieved is of course “a substantive question determined by the effect of the action on the party . . . .” “In determining whether the interest asserted renders a litigant ‘aggrieved,’ the court must ascertain whether the interest is ‘substantial,’ ‘direct,’ ‘immediate,’ and ‘not a remote consequence’ of the challenged action.” American Booksellers Association Inc. v. Rendell, 332 Pa. Super. 537, 553, 481 A.2d 919, 927 (1984). Therefore, “to justify judicial intervention, a party must allege a recognizable, adverse effect to himself and a close causal nexus between the injury and the challenged conduct.” American Booksellers Association Inc. v. Rendell, supra, at 554, 481 A.2d at 927. (footnote omitted)

Appellant has failed to demonstrate a basis upon which standing can be founded because, as hereinabove set forth, it has not tried or argued this matter upon the issue of its own homeowner’s policy (i.e., its own legal rights). Appellant contends that because the automobile policies were found not to be responsible for coverage and since the term “use” was in all the policies, that the definition of that term should likewise preclude coverage by appellant’s policy. The position is not supported by the law, and is purportedly supported herein by appellant’s conclusory statements without evidence or appropriate legal argument. Although appellant’s policy does include the term “use,” no party in this action has sought an interpretation of that term within the appellant’s exclusion clause as it applies to the facts of this incident (i.e., a passenger grabbing the steering wheel).

Indeed, other jurisdictions have considered the issue as to whether a homeowner’s policy “vehicle use” exclusion in a “steering wheel grab” case excludes coverage. The results are ambivalent. Hingham Mutual Fire Insurance Company v. Niagara Fire Insurance Company, 46 Mass. App. Ct. 500, 707 N.E. 390 (1999) (homeowner’s insurer had a duty to defend “steering wheel grab” case, given interpretation of clause excluding coverage for damages “arising out of use of motor vehicle operated by an insured,” as “use” and “operated” were not defined by, and therefore properly to be construed against the insurer); Poppy v. Muehlenberg, 215 Wis.2d 58, 571 N.W.2d 914 (1997) (homeowner’s coverage precluded pursuant to policy exclusion when insured is “using” or “operating” any kind of vehicle, as third party who placed foot on brake of bus, causing accident, was “using” or “operating” the vehicle, even if momentarily); United States Fire Insurance Company v. United Service Automobile Association, 722 S.W.2d 218 (Ct. App. Texas 1989) (homeowner’s coverage precluded in “steering wheel grab” case under exclusion denying damages arising from accidents involving the use or operation of any vehicle by an insured because, while riding constituted “use,” grabbing the wheel was not “operation” thereof); West Bend Mutual Insurance Company v. Milwaukee Mutual Insurance Company, 372 N.W.2d 438 (Ct. App. Minn. 1985), aff’d, 384 N.W.2d 438 (Minn. 1986) (homeowner’s insurance coverage allowed in “steering wheel grab” case interpreting exclusion for damages arising from the use of any land motor vehicle operated by an insured, as nonpermissive use of grabbing steering wheel was interference with operation by another, and not operation of vehicle); State Farm Mutual Automobile Insurance Company v. White, 60 Or. App. 666, 655 P.2d 599 (1982) (homeowner’s coverage allowed for “steering wheel grab” accident under exclusion which barred damages for use of vehicle operated by insured, as insured was merely “interfering with driver” and not “operating” vehicle within meaning of exception). Inclusionary clauses in automobile policies and exclusionary clauses of homeowner’s policies are to be interpreted separately. Inclusionary clauses are to be construed broadly to protect the interest of the insured. Exclusionary clauses are to be construed narrowly against the insurer. West Bend Mutual Insurance Company v. Milwaukee Mutual Insurance Company, supra, 372 N.W.2d at 441; Farm Bureau General Insurance Company of Michigan v. Riddering, 172 Mich. App. 696, 432 N.W.2d 404 (1988); State Farm Mutual Automobile Insurance Company v. White, supra. It has hereinabove been noted that the appellant has failed to supply this court with any legal or evidentiary basis upon which to make the determination reviewed in the above cited cases. If, in fact, no party sought coverage for Steven Hart under the Great Northern policy, then any interest affected by the court’s ruling is remote indeed.

Since no Pennsylvania appellate decisions have been found controlling appellant’s standing, it is instructive to consider the matter of Farm Bureau General Insurance Company of Michigan v. Riddering, supra, which considers the issue of whether the automobile insurance carrier for the passenger and for the vehicle was responsible to defend an automobile negligence case, or whether the homeowner’s insurer for the parents of the passenger who grabbed the steering wheel and caused the accident had the duty to defend the claim. The Michigan appellate court affirmed the trial court’s decision in favor of the automobile insurers, and found that the homeowner’s insurer had no standing to appeal from that decision. The homeowner’s insurer there, as Great Northern here, had failed to file a cross-claim against the automobile insurers, and therefore the homeowner’s insurer was found not to be an aggrieved party.

Since the appellant Great Northern failed to file cross-claims against the automobile insurers, and since appellant confined the issues, in its motion for reconsideration and concise statement of matters complained of on appeal, solely to questions regarding this court’s ruling in favor of the automobile insurers, it is respectfully suggested that appellant has no standing to file this appeal, and that this court, therefore, has no jurisdiction to consider it. Further, appellant has not sought an interpretation of its own exclusionary cause, nor has it presented evidence or appropriate legal argument as concerns that issue. Since this court’s order does not address the appellant’s homeowner’s insurance policy, or its coverage, there is therefore no jurisdiction to address those issues. Farm Bureau General Insurance Company of Michigan v. Riddering, supra. It must also be observed that since Ms. Glenn has discontinued her appeal from this court, any issue concerning the interpretation of automobile policies no longer remains in issue on appeal.

PERMISSIVE USE PROVISION IN AUTOMOBILE POLICY

Appellant, in its concise statement of matters complained of on appeal, argues that the court based its conclusion upon a finding that Steven Hart was a “user” and that his acts were “intentional” and therefore the Progressive and Harleysville policies should be required to provide coverage. Appellant also contends, therein, that the car’s owner or operator is attempting to withdraw permission granted to Steven Hart to “use” the vehicle. Finally, appellant contends that, since Steven Hart was “using” the car, the court should have found no obligation to defend on the part of Great Northern. Appellant argues basically that Steven Hart was a permitted “user” of the vehicle, and that that permission also included his grabbing the steering wheel. There is no evidentiary basis for such conclusion and the court did not so conclude. The permission granted to Steven Hart by Tara Glenn was to “use” the car as a passenger, not as a driver. It is clear that Harleysville did not deny coverage based on Steven Hart’s permission to be a passenger. (Deposition of Cheryl Hazard pp. 50-52, exhibit 6 to memorandum of law of Federal Insurance Company in response to plaintiff’s declaratory judgment motion.) It is also clear that the lack of permission from Ms. Glenn’s father was never an issue in this case nor a basis for the denial of insurance coverage. The issue of whether Steven Hart was “using” this vehicle according to the terms of Great Northern’s homeowner’s policy was neither the subject of evidence nor of legal argument in this matter. Appellant, in all fairness, did mention this concept in its memorandum in support of its motion for reconsideration but only in boilerplate fashion stating that “Steven Hart was ‘using’ the car. Therefore, the court’s order should have held that Great Northern owed no obligation to provide coverage.” (Defendant’s memorandum, p. 3.)

This court concluded that Steven Hart’s conduct substantially deviated from the permissive use as contemplated under the relevant provisions of the automobile insurance policy omnibus clauses. The issue, in the case at bar, was not whether Steven Hart was permitted to “use” this vehicle but whether Steven Hart exceeded the scope of permission granted him to use this vehicle as a passenger, considering the permissive use provisions of the relevant automobile insurance policies. This distinction seems to elude appellant, who persistently argues that permission to use a vehicle as a passenger includes permission to use a vehicle as a driver. This contention is supported neither by law nor by logic, appellant’s boilerplate statements to the contrary notwithstanding. The same must be said of appellant’s argument that the term “use” is to be interpreted the same in this homeowner’s policy as it is in these automobile policies. Appellant has provided this court with no reasoning or authority to support that contention. Pennsylvania law differentiates between permission to occupy a vehicle and other conduct beyond mere occupancy that causes damage.

It is the well-settled law of this Commonwealth that, under an omnibus clause of an automobile insurance policy which designates as an insured any person using the insured vehicle with the permission of the owner, the permission necessary to elevate the user to the status of an additional insured must be express or implied. Brower v. Employers’ Liability Assurance Company Ltd., 318 Pa. 440, 444, 177 A. 826, 828 (1935); Conrad v. Duffin, 158 Pa. Super. 305, 309, 44 A.2d 770, 772 (1945); Esmond v. Liscio, 209 Pa. Super. 200, 206, 224 A.2d 793, 796 (1966); Belas v. Melanovich, 247 Pa. Super. 313, 372 A.2d 478 (1977); Federal Kemper Insurance Company v. Neary, 366 Pa. Super. 135, 530 A.2d 929 (1987); Adamski v. Miller, 434 Pa. Super. 355, 643 A.2d 680 (1994), aff’d, 738 A.2d 1033 (Pa. Super 1999). See also, Blashfield, Automobile Law and Practice §315.10, at 605 (3d ed. 1966); annot., omnibus clause as extending automobile liability coverage to third person using car with consent of permittee of named insured, 21 A.L.R. 4th 1146 (1983). Implied permission may arise from the relationship of the parties or by virtue of a course of conduct in which the parties have mutually acquiesced. Adamski v. Miller, supra; Federal Kemper Insurance Company v. Neary, supra, 366 Pa. Super. at 140, 530 A.2d at 931; Brower v. Employers’ Liability Assurance Company Ltd., supra, 318 Pa. at 444, 177 A. at 828; Esmond v. Liscio, supra, 209 Pa. Super. at 206, 224 A.2d at 796; Conrad v. Duffin, supra, 158 Pa. Super, at 309, 44 A.2d at 772. See Blashfield, supra §315.10, at 607, “[PJermission requires something more than mere sufferance or tolerance without taking steps to prevent the use of the automobile, and permission cannot be implied from possession and use of the automobile without the knowledge of the named insured.” Id. §315.10, at 608. “[T]he critical question will always be whether the named insured said or did something that warranted the belief that the ensuing use was with his consent. There must be ‘a connection made’ with the named insured’s own conduct; proof of ‘acts, circumstances, and facts, such as the continued use of the car,’ will be insufficient ‘unless they attach themselves in some way to the acts’ of the named insured.” Belas v. Melanovich, supra, 247 Pa. Super. at 324, 372 A.2d at 484, quoting Beatty v. Hoff, 382 Pa. 173, 177, 114 A.2d 173, 174 (1955). This record is devoid of even the slightest inference of express or implied permission from Tara Glenn or her father for Steven Hart to grab the steering wheel of the vehicle while Ms. Glenn was driving. The parties’ stipulation was limited to the fact that Mr. Hart had Ms. Glenn’s permission to be a passenger.

The Pennsylvania Superior Court has held that permissive use of a vehicle as an occupant does not extend to operation of the vehicle. Federal Kemper Insurance Company v. Neary, supra, 366 Pa. Super. at 140, 530 A.2d at 932. The Federal District Court in Polyak v. Israelson, 348 F. Supp. 529, 531 (W.D. Pa. 1972), concluded that while “use,” in connection with the omnibus clause of an automobile policy, is broader in scope than “operation” or “control” of the vehicle, the court was there considering a passenger who never touched the steering wheel, and therefore the issue of “operation” of the vehicle never arose. See also, Maryland Casualty Co. v. Marshbank, 226 F.2d 637 (3d Cir. 1955). There the Third Circuit court was considering a case where a friend of the insured’s son was in fact driving the vehicle at the time of the accident, and with the insured’s express permission. It is clear that these courts have differentiated between the occupation of a vehicle by a passenger and conduct beyond that causing an accident where the vehicle is operated by another.

The court in General Accident Insurance Co. v. Margerum, supra, 375 Pa. Super. at 363, 544 A.2d at 513, considered the permissive use provision of an automobile insurance policy using, in relevant terms, language identical to the policies in question, to wit, “anyone else ... while using with your permission a covered auto you own, hire or borrow,” and found that driving under the influence was a substantial deviation from using an employer’s vehicle with permission for personal convenience. Again, the issue involved a driver not a passenger. Coverage was precluded. The Pennsylvania Supreme Court in Freshkorn v. Marietta, 345 Pa. 416, 419, 29 A.2d 15, 16 (1942), held that permission to drive a car given subsequent to a request, must be viewed in light of that request and thus be limited by it. That court basically adopted the “frolic of his own” rule from the law of agency, holding that there is no liability if, at the time of the accident, the car is being driven for “a purpose not authorized by the insured.” A “slight deviation” would “not annul the coverage of the omnibus clause.” Freshkorn v. Marietta, supra, 345 Pa. at 420, 29 A.2d at 16-17. That analysis, applied in the case at bar, would dictate that Mr. Hart’s permission to “use” this vehicle was limited to riding as a passenger, and therefore, as a person not using the steering wheel.

Appellant argues that Steven Hart did not act with intent and therefore that the exclusion in that regard would not apply to his conduct. (Concise statement, paragraph 4.) The “intentional acts” exclusion clause was not at issue in this litigation, nor is there evidence or stipulation as to Steven Hart’s state of mind. The nature of Mr. Hart’s conduct becomes a factor only after the court determines whether or not he was an “insured” pursuant to the automobile policy omnibus clause. Mr. Hart was found not to be an “insured” under the automobile policies and therefore there was no reason to consider the nature of his conduct. Appellant, in any event, has simply argued why there should be coverage pursuant to the automobile policies but has provided neither a basis nor a rationale to explain why there should be a denial of coverage under appellant’s policy.

Appellant also argues that Tara Glenn did not advise Steven Hart that his use of the vehicle was limited to non-negligent conduct. (Concise statement, paragraph 5.) Again, the nature of the conduct of the parties was not an issue until it was determined whether Mr. Hart was an insured under the automobile policies. The evidence, stipulation and arguments have never focused upon the conduct of Ms. Glenn or the negligence of Steven Hart. It is simply incorrect to suggest that: “the denials of coverage to Steven Hart by Progressive and Harleysville are based upon the negligent manner in which he used the Glenn vehicle.” (Concise statement, paragraph 6.) This record evinces that the denials of coverage were based solely upon Steven Hart’s inability to qualify as an insured because he exceeded the scope of permission to use the Glenn vehicle as a passenger. There is therefore no necessity to address the character or manner of Steven Hart’s intentions or conduct at the time of this incident.

There is in Pennsylvania a dearth of authority concerning incidents where a passenger grabs the steering wheel while another is operating the vehicle. Appellant suggests that denials of coverage based upon the manner of use (as opposed to deviations of time, place, or purpose) are not enforceable in this Commonwealth and that the “permissive use” provision is inapplicable to a passenger. (Concise statement, paragraphs 7 and 8.) Since appellant has failed to provide legal argument, evidence or relevant legal citation, the contention should be deemed waived. Pa.R.C.P. 227.1; Commonwealth ex rel Robinson v. Robinson, supra. Appellant cites Donegal Mutual Insurance Company v. Long, 387 Pa. Super. 574, 564 A.2d 937 (1989), alloc. granted, 525 Pa. 657, 582 A.2d 323 (1990), aff’d, 528 Pa. 295, 597 A.2d 1124 (1991), for the proposition that public policy in Pennsylvania mandates insurance coverage for negligent conduct. Once again, however, it was never necessary to reach the issue of Steven Hart’s conduct. Further, that authority serves as no basis for denial of appellant’s homeowner’s policy coverage. It is clear that a nonpermissive use provision in an omnibus clause of an automobile policy is not violative of public policy. Nationwide Mutual Insurance Company v. Cummings, 438 Pa. Super. 586, 652 A.2d 1338 (1994); Gift v. Nationwide Insurance Company, 1998 WL 164997 (E.D. Pa. 1998).

There has been no discussion by appellant of authorities from other jurisdictions concerning “steering wheel grab” cases. Appellant relies upon the authority of Brower v. Employers’ Liability Insurance Co. Ltd., supra. The court there simply concluded that coverage was expressly excluded for any automobile repair shop and therefore, that the subject exclusionary clause precluded coverage. The manner of operation was irrelevant because the driver, a mechanic involved in the business of repairing the insured vehicle, was clearly outside of his permissive scope and therefore not an “insured.” The court never reached the issue of deviation from permissive use of a vehicle since exclusion there was specific. The authority of this case does not mandate coverage from the Progressive and Harleysville policies in the case at bar.

The Supreme Court of Pennsylvania has held that it is appropriate and necessary for the court to consider whether there was a deviation from the scope of permissive use of the vehicle in interpreting whether there is coverage under an automobile policy, and whether that deviation was either inconsequential or substantial. Brower v. Employers’ Liability Insurance Co. Ltd., supra; Laroche v. Farm Bureau Mutual Insurance Company, 335 Pa. 478, 7 A.2d 361 (1939); Freshkorn v. Marietta, supra.

It is respectfully submitted that to suggest permission is given to grab a steering wheel in a vehicle operated by another simply by allowing one to become a passenger, is unreasonable and illogical. There is not a scintilla of evidence, nor the hint of any inference suggesting that when Steven Hart was given permission to ride as a passenger in this vehicle, that either Tara Glenn or her father gave, directly or indirectly, permission, or could have reasonably anticipated that a passenger would grab the steering wheel where there was no emergency. The principle is not unique. Jurisdictions outside of the Commonwealth have come to a similar conclusion. State Farm Mutual Automobile Insurance Company v. White, supra; Viking Insurance Company of Wisconsin v. Zinkgraf, 47 Wash. App. 645, 737 P.2d 268 at 269 (1987); State Farm Mutual Automobile Insurance Company v. Jenkins, 764 S.W.2d 547 (Ct. App. Tn. 1988). Indeed, it is the law in a number of states that the grabbing of the steering wheel exceeds the scope of permission to ride in a vehicle as a passenger. Viking Insurance Co. of Wisconsin v. Zinkgraf supra; State Farm Mutual Automobile Insurance Company v. Larsen, 62 Ill. App.3d 1, 377 N.E.2d 1218 (1978); United States Fidelity & Guaranty Company v. Hokanson, 2 Kan. App. 580, 584 P.2d 1264 (1978); Millet v. Nelson, 408 So.2d 360 (La. Ct. App. 1981); State Farm Mutual Automobile Insurance Company v. White, supra.

It is therefore respectfully submitted that this court did not err in finding that Steven Hart’s use of the Glenn motor vehicle substantially deviated from the use permitted, and in issuing an order which did not include a disposition as to Great Northern’s obligation to provide coverage.

CONCLUSION

This court bears the responsibility of construing an insurance policy and of discerning the intent of the parties in entering into that contract. Hutchinson v. Sunbeam Coal Corp., 513 Pa. 192, 519 A.2d 385 (1986); Standard Venetian Blind Company v. American Empire Insurance, 503 Pa. 300, 469 A.2d 563 (1983). The words of an insurance policy, as in any contract, which are unambiguous and clearly reflect the intent of the parties, should be construed according to their plain and ordinary meaning, and the court should give effect to that language. See Pennsylvania Manufacturers’ Association Insurance Company v. Aetna Casualty & Surety Insur ance Company, 426 Pa. 453, 233 A.2d 548 (1967). The court ought not to undertake technical or overly subtle interpretations so as to defeat the reasonable expectation of the insureds. See Huffman v. Aetna Life & Casualty Co., 337 Pa. Super. 274, 486 A.2d 1330 (1984). Where reasonably intelligent people could differ as to the meaning of a contractual provision, the term may then be properly characterized as ambiguous. Loomer v. M.R.T. Flying Service Inc., 384 Pa. Super. 244, 558 A.2d 103 (1989).

Appellant has inexplicably failed to demonstrate why coverage should be precluded under its homeowner’s policy, and has abjectly failed to demonstrate why judgment in favor of the automobile insurance carriers should be set aside. The court is mindful that in reviewing a declaratory judgment the court is bound by the same narrow standard of review that exists in equity actions. Federal Kemper Insurance Company, supra, at 139, 530 A.2d at 930-31; Shaffer v. Flick, 360 Pa. Super. 192, 520 A.2d 50 (1987). A declaratory judgment will not be reversed absent a clear abuse of discretion or of law. Lombardo v. DeMarco, 350 Pa. Super. 490, 504 A.2d 1256 (1985). The focus is to determine whether the trial court’s conclusion can reasonably be drawn from the evidence. In re Estate of Tippins, 487 Pa. 107, 408 A.2d 1377 (1979); Lombardo v. DeMarco, supra, at 495, 504 A.2d at 1258; Hoffman v. Gekoski, 250 Pa. Super. 49, 378 A.2d 447 (1977). Where a trial court’s factual determinations are reasonably supported by the evidence then a reviewing court will not substitute its judgment for that of the trial court. Frowen v. Blank, 493 Pa. 137, 425 A.2d 412 (1981).

For all of the foregoing reasons, it is respectfully suggested that the judgment entered by this court is properly founded upon the evidence presented by this record, and supported by the law, logic and justice. It should therefore not be disturbed.

      . The Honorable Clement J. McGovern Jr. was formerly the judge to whom the above-captioned matter was assigned. Judge McGovern entered the judgment upon which this appeal is based and contributed to the drafting of this opinion. He has since retired and this opinion has been completed and filed by the undersigned judge.

      . The issue of waiver has been previously discussed at pages 275-77, supra.

      . In the interest of thoroughness, completeness and clarity of analysis, the court has, on its own initiative, cited a representative number of those cases at pages 279 and 280, supra, and at pages 289 and 290, infra.


source: Caselaw Access Project

author: SCHAEFFER, S.J.,

license: Public Domain

text:
    F.M. Brown’s Sons Inc. v. Wilson School District

      C.P. of Berks County,
    no. 98-13613.

      Philip J. Edwards, for plaintiff.

      Richard E. Fehling, for defendant.
    August 1, 2000
   SCHAEFFER, S.J.,

This declaratory judgment action arises out of a dispute over whether the plaintiff, F.M. Brown’s Sons Inc., is obligated to pay a business privilege tax to defendant, the Wilson School District.

On October 22, 1998, Brown’s was sent a notice of a business privilege tax audit, computing taxes due Wilson going back to 1992. On December 18,1998, Brown’s filed this declaratory judgment action, asserting that revenue from Brown’s birdseed and wildlife feed operations, at two locations within Wilson’s boundaries in Sinking Spring Borough, Berks County, Pennsylvania, is exempt from and not subject to Wilson’s business privilege tax because its operations constitute manufacturing. Wilson contends that the exemption does not apply to Brown’s operations because it does not change the original product, seed and grain, into any new, different or useful article.

After a non-jury trial, we make the following findings of fact:

FINDINGS OF FACT

(1) Plaintiff, F.M. Brown’s Sons Inc., is a business corporation incorporated under the laws of the Commonwealth of Pennsylvania with its registered office at 205 Woodrow Avenue, Sinking Spring, Berks County, Pennsylvania.

(2) Defendant, the Wilson School District, is a public school district with its administrative offices located at 2601 Grandview Boulevard, West Lawn, Berks County, Pennsylvania.

(3) Plaintiff was audited around 1987 or 1988 by Mr. Lilierose, Wilson’s tax auditor at the time, who toured the 205 Woodrow Avenue facility.

(4) By letter to Wilson, dated January 14,1988, plaintiff, by its secretary Harvey J. Brown, requested a determination that plaintiff was exempt from paying Wilson’s business privilege tax.

(5) By letter dated April 22, 1988, Wilson, by its assistant to the business manager, Charlotte G. Auman, stated, “Our solicitor has reviewed your request for exemption in regards to the mercantile tax. It is his opinion that the portion of F.M. Brown’s operations that are involved with ‘milling’ are exempt from the Wilson School District’s mercantile tax.”

(6) Brown’s thereafter did not pay the BPT on any of its birdseed or small animal feed.

(7) In February 1998, an auditor to Wilson, Mr. Susko, toured Brown’s facility and reviewed its financial records.

(8) The BPT audit results that followed showed a balance due of tax, penalties and interest of $38,120.36 for tax years 1992 through 1997, calculated to March 21, 1999.

(9) The Wilson BPT taxes, penalties and interest owed for the years 1998, 1999 and 2000 have not yet been calculated.

(10) Wilson acknowledges that the revenue from the product sold by Brown’s seed division constitutes wholesale sales revenue, subject to being taxed at the rate of 0.1 percent, rather than 0.15 percent, the latter being the rate of the Wilson BPT for retail sales.

(11) Plaintiff produces approximately 1,500 different products through its seed division.

(12) Plaintiff categorizes its feeds in four segments: wild bird, caged bird, small animal and pigeon.

(13) Across the four segments of the seed division, two general descriptions of its products cover all of the products that Brown’s sells: (1) a product that contains a single seed, grain or vitamin-enhanced pellet, whether it is sold in small containers or large, bulk bags (single-source feed); and (2) a product that contains more than one seed, grain, or vitamin-enhanced pellet, whether it is sold in small containers or large, bulk bags with two, three or more different seeds, grains or pellets (multisource feed).

(14) The vitamin-enhanced pellets that are added to the feed are produced at Brown’s Birdsboro facility, which is located outside the Wilson School District.

(15) The vitamin-enhanced pellets are delivered to the Woodrow Avenue site, where they are stored in bins for use as a single-source feed or for mixing/blending as a component of the multi-source feeds.

(16) Seeds and grains are delivered to the James Street site for processing for use as a single-source feed or for mixing/blending as a component of the multi-source feeds.

(17) Upon arrival of the seeds or grain, Brown’s personnel at the James Street site perform the following tests or inspections: (a) measure the moisture content of the feed; (b) measure the test-weight of the feed; (c) visually inspect the feed; and (d) smell the feed.

(18) Brown’s remedies loads of feed that are too moist by drying them, remedies loads of feed that have insects by using an appropriate insecticide, and rejects loads of feed that cannot be remedied.

(19) After the testing and inspections at the James Street site, Brown’s moves the seeds and grain to its Woodrow Avenue site for further processing and packaging.

(20) The seeds and grains are cleaned at the Woodrow Avenue site by being run through and over various-sized screens, which screens eliminate big detritus (such as sticks, stems and large stones) and small detritus (such as cracked/broken seeds, large dust, dirt and small stones).

(21) The seeds and grains are further cleaned at the Woodrow Avenue site by passing them through a large air-blowing/suction machine that eliminates dust and other very fine particles from the seeds and grain.

(22) The seeds and grain are then moved into storage bins, awaiting packaging as a single-source feed or mixing and blending into a multi-source feed.

(23) Single-source feed is moved into a holding tank and is then poured into a variety of packaging: (a) poly (plastic) bags with natural air; (b) poly bags with C02; (c) small paper bags; and (d) 50-pound paper bags for bulk sales.

(24) Multi-source feed is blended/mixed in batches of many hundreds of pounds and is then moved into a holding tank, from which it is poured into a variety of packaging: (a) poly (plastic) bags with natural air; (b) poly bags with C02; (c) small paper bags; and (d) 50-pound paper bags for bulk sales.

(25) The contents of the initial truckloads of product delivered to Brown’s are seed and grain, uncleaned and dusty; what is packaged and sold by Brown’s remains seed and grain, albeit cleaned and mixed according to formulas.

(26) Brown’s cracks com at its James Street site, which involves running the corn through rotating knives that cut the corn into small pieces which are then ran over or through two screens for further cutting, then screening out dust and tiny pieces of com which fall through into a waste area where they are removed, stored and sold.

(27) The cracked corn is then moved to one of the holding bins at the Woodrow Avenue site, where it is either packaged alone as a single-source feed or is mixed/ blended with other seeds, grains or vitamin-enhanced pellets as a multi-source feed.

(28) By its letter to Brown’s, dated April 22, 1988, and as a stipulation in this matter, Wilson acknowledged that the “cracking” of com by Brown’s constitutes “milling.”

DISCUSSION

The issue before the court is whether or not plaintiff’s production of wild bird, caged bird, small animal and pigeon feed constitutes “manufacturing” under the provisions of the Local Tax Enabling Act and Wilson’s ordinance so as to exempt the revenue derived from their sale from Wilson’s business privilege tax.

Tax statutes are generally strictly construed. Harrisburg v. School District of Harrisburg, 675 A.2d 758, 766 n.5 (Pa. Commw. 1996), rev’d on other grounds, 551 Pa. 295, 710 A.2d 49 (1998). Statutes providing exemptions from taxation, however, must also be strictly construed, 1 Pa.C.S. § 1928(b)(5), and it is the taxpayer’s burden to prove entitlement to an exemption. Industrial Valley Title Insurance Co. v. School District of Philadelphia, 661 A.2d 497, 499 n.1 (Pa. Commw. 1995).

The statutory basis for the Wilson business privilege tax is the LTEA, 53 PS. §6901 et seq. Under this act, revenue derived from manufacturing is exempt from taxation:

“(4) To levy, assess and collect a tax on goods and articles manufactured in such political subdivision or on the by-products of manufacture... or on the preparation or processing thereof for use or market, or any privilege, act or transaction related to the business of manufacturing ... by manufacturers ... with respect to the goods, articles and products of their own manufacture... or on any privilege, act or transaction relating to the business of processing by-products of manufacture, or on the transportation, loading, unloading or dumping or storage of such goods, articles, products or by-products.” 53 P.S. §6902(4).

The Wilson business privilege tax resolution and regulations are in line with the LTEA and also exempt manufacturing from taxation:

“(5) Production and manufacture — No such tax shall be assessed and collected on goods, articles, and products, or on by-products of manufacture, . . . manufactured . . . within the district, or on the preparation or processing thereof for use or market, or on any privilege, act or transaction relating to the business of manufacturing, ... by manufacturers,. . . with respect to the goods, articles and products of their own manufacture ... .” Resolution, section III, c(5).

“(a) No tax shall be assessed and collected on goods, articles, products, by-products of manufacture,... manufactured . . . within the district, or on the preparation or processing thereof for use or market, or on any privilege act or transaction relating to the business of manufacturing ... by manufacturers . .. with respect to the goods, articles and products of their own manufacture . . . .” Regulations, section V, 6(a).

In Township of Muhlenberg v. Clover Farms Dairy Co., 665 A.2d 544 (Pa. Commw. 1995), the Commonwealth Court noted that the definition of “manufacturing” found in the relevant case law applies to all local tax ordinances enacted pursuant to the LTEA, and: “[cjonsists in the application of labor skill to material whereby the original article is changed to a new, different and useful article ...[.] Whether or not an article is a manufactured product depends on whether or not it has gone through a substantial transformation in form, qualities and adaptability in use from the original material, so that a new article or creation has emerged...[.] If there is merely a superficial change in the original materials, without any substantial and well signalized transformation inform, [sic] qualities and adaptability in use, it is not a new article or new product.. . [.]” Id. at 546, citing Bindex Corp. v. City of Pittsburgh, 504 Pa. 584, 587, 475 A.2d 1320, 1322 (1984). (citation omitted)

We find that the line of cases dealing with food products are analogous to the case at bar. In Clover Farms, supra, this court granted summary judgment to the Township of Muhlenberg based on our determination that Clover Farms was not exempt from either the township’s mercantile tax or business privilege tax. The Commonwealth Court affirmed, holding that, “for a business to be classified as a manufacturer, it must meet two criteria: (1) skill, labor and science must be involved; and (2) a new, different and useful product must be created.” Id. at 547, citing Van Bennett Food Co. Inc. v. City of Reading, 87 Pa. Commw. 30, 486 A.2d 1025 (1985).

Clover Farms produced three different non-dairy drinks: fruit juice, fruit drinks and iced tea. To produce the fruit juices, Clover Farms purchased squeezed fruit juice, which then had its water evaporated leaving a slurry, a frozen syrup-like material. The slurry was transported to Clover Farms, where pasteurized water was added, along with sucrose. The temperature, sugar, acid, and bacteria levels were monitored by sophisticated machines. The process for making the fruit drinks and iced tea involved the blending of pasteurized water and sucrose with powdered mixes using machines to regulate the temperature, sugar, acid and bacteria levels. The Commonwealth Court held that Clover Farms’ process effected only a superficial change in the original materials and that the final product was not to be put to a use other than that which had been intended for the original ingredients. Clover Farms began and ended with essentially the same product, viz, juice and soft drinks, and therefore, the Commonwealth Court held that Clover Farms was not a manufacturer because it did not produce a new, different and useful product. Id. at 547.

Thus, we must first determine whether the preparation methods used for the products at issue, birdseed and small animal feed, consist of the application of a high degree of skill, science and labor; and second, whether there has been a substantial transformation in form, qualities and adaptability in use so as to produce a new, different and useful article.

With respect to the instant case, the record indicates that the process involves buying grains of the utmost quality that contain the highest possible nutrients. The grain is shipped to Brown’s facility where it is first checked for quality, moisture level and test weight. The grain is visually inspected for abnormalities and insects, then for abnormal odors. If the quality meets Brown’s standards, the grain is moved to the Woodrow Avenue site where it is put through a cleaner and cleaned two ways: by air and by screenings. The clean grain is then stored in bins to await the mixing process. Com is cut into the correct size and mixed with other ingredients to make the wild bird feed and the caged bird feed. When Brown’s makes a particular type of feed, it exactly weighs, and in some instances, volume weighs the ingredients that go into the feed. The feed is then mixed and once again cleaned by air. It is cleaned by screens before it’s elevated into holding tanks for packaging. Brown’s then packages the feed in either paper bags or polyethylene bags with carbon dioxide added to extend the shelf life of the feed.

The number one criteria focused on for the production of wild bird feed is the attractant quality to the birds, while the caged bird feeds focus on the health of the birds and the nutritional requirements of the feed. Small animal feed focuses on the animal’s nutritional needs. The labels on the products contain a guaranteed analysis of, inter alia, the minimum level of protein, fat and fiber contained in the products. The products can also contain an attractiveness chart, a general information chart on what seed preferences various species of birds have. During the blending and mixing process, both a nutritional analysis and corresponding consistent formulation are required so that each type of feed will perform to its guaranteed specifications as provided on the package labels. In some cases, the feeds are vitamin fortified. We find that formulation of these mixes requires the application of skill, science and labor.

However, as to the second requirement, the grain and seeds which are originally shipped to Brown’s are not substantially changed into new and different articles. The raw grains and seeds remain essentially what they were before they were processed, mainly grains and seeds. Brown’s final products are not, therefore, new and different items that would be put to a use other than that which had been intended for the original ingredients. We find that there has been no substantial transformation in form, qualities and adaptability in use so as to produce a new, different and useful article. We hold, therefore, that the process used by Brown’s to make its wild bird, caged bird, small animal and pigeon feed does not constitute manufacturing, and further, that revenue derived from their sale is not exempt from Wilson’s BPT.

Wilson has agreed and stipulated that the cracking of com, and the single-source cracked com, remains manufacturing, and revenue derived from the sale of cracked com is exempt from its business privilege tax. Therefore, the cost of the “cracked com” component of all birdseed and feed is entitled to be deducted from Brown’s gross revenues.

CONCLUSIONS OF LAW

(1) Statutes providing exemption from taxation must be strictly construed; it is Brown’s burden to prove its entitlement to exemption from taxation under the Wilson BPT.

(2) The preparation methods used for the products at issue, birdseed and small animal feed, consist of the application of a high degree of skill, science and labor.

(3) There has been no substantial transformation in form, qualities and adaptability in said products’ use so as to produce a new, different and useful article.

(4) The portion of Brown’s operations that involves the cracking of com constitutes manufacturing, thereby exempting revenue received from the sale of cracked com from the Wilson BPT; both the revenue from the sale of the single-source cracked com and the revenue from the cracked com component of any cracked com blends are exempt from the Wilson BPT.

(5) Brown’s failure to allocate exempt from non-exempt revenue constitutes a waiver of its right to present any such allocations of revenues for the March 21,1999 audit, therefore, Brown’s owes to Wilson the full amount of tax set forth in the March 21,1999 audit, plus interest at the annual rate set forth in the Wilson BPT resolution after March 21, 1999, until the amount is paid in full.

(6) Brown’s owes to Wilson tax on the revenue of its seed division for 1998, 1999, 2000 and thereafter, plus any penalties and interest, subject to the right of Brown’s to deduct from its taxable wholesale revenue the amount of such revenue that is derived from the sale of cracked com. Brown is obligated to file amended tax returns for this period, showing what is owed and proving what is exempt from the Wilson BPT.

(7) Wilson did not, in its April 22,1988 letter, declare that Brown’s entire birdseed and wildlife feed operation was exempt from the Wilson BPT.

(8) The claim of Brown’s that Act no. 145 of December 13, 1988, 72 P.S. §7450.533(b), prohibiting Wilson from reinstating the taxability of its birdseed and wildlife feed revenue is not supported by the evidence, and is without merit.

(9) The claim of Brown’s that Wilson is estopped from taxing revenue from its birdseed and wildlife feed operations is not supported by the evidence and is without merit.

Accordingly, we enter the following decree nisi:

DECREE NISI

And now, to wit, August 1, 2000, it is ordered and decreed that F.M. Brown’s Sons Inc. is obligated to pay to the Wilson School District the entire business privilege tax assessed in the March 21,1999 audit, plus interest and penalties, as well as the taxes, penalties and interest owed for the years 1998, 1999 and 2000, on the revenues derived from its birdseed and wildlife feed operations, in Sinking Spring Borough, Berks County, Pennsylvania, because F.M. Brown’s Sons Inc.’s process at said plant is not manufacturing that would establish an exemption from the Wilson School District Business Privilege Tax.

It is further ordered that the portion of F.M. Brown’s Sons Inc.’s operation that involves the cracking of com constitutes manufacturing and the revenue received from the sale of cracked com and any cracked corn component of any blends of its feed are exempt from the Wilson business privilege tax. F.M. Brown’s is entitled to deduct from its taxable wholesale revenue the amount of such revenue that is derived from the sale of cracked com for the years 1998,1999 and 2000. F.M. Brown’s is obligated to file amended tax returns for this period, showing what is owed and proving what is exempt from the Wilson business privilege tax.

If no exceptions are filed to this decree nisi within 10 days from and after the date of the service of the same upon the parties thereto, this decree shall become absolute as of course.


author: DiBONA,

text:
    DiMonte v. Neumann Medical Ctr.

      C.P. of Philadelphia County,
    April Term 1994,
    no. 2306.

      Robert Datner, for plaintiff.

      Jil Fisher, for defendant Neuman Medical Center.

      Mitchell S. Clair, for defendant Judge Halbert.
    December 6, 2000
   DiBONA,

This is a premises liability action which was tried before the Honorable Marvin R. Halbert and a jury. The jury returned a verdict in favor of the defendant, Neumann Medical Center. Plaintiff’s post-trial motions were denied and the plaintiff appealed the matter to the Superior Court. On April 19,2000, the Superior Court filed an opinion which focused on the contentions of the plaintiff that the trial judge engaged in varying types of misconduct which resulted in the plaintiff being denied a fair trial. The contentions of the plaintiff fall into four categories as noted by the Superior Court. These are: (1) the trial judge left the bench on numerous occasions during trial; (2) the trial judge enlisted the assistance of a juror to adjust air conditioning vent during trial; (3) the trial judge made and received numerous phone calls from the bench during trial; and (4) the trial judge left the courtroom during trial on two separate occasions. The Superior Court determined that if these contentions were true, such actions may constitute “structural error” as defined in United States v. Mortimer, 161 F.3d 240 (3d Cir. 1998) which would entitle the plaintiff to a new trial. The Superior Court then remanded this matter to the court of common pleas for an evidentiary hearing to determine if there is any merit to the plaintiff’s claims of “judicial comportment during the trial” and the effect, if any, on the plaintiff’s due process right to a fair trial. The Honorable John Herron, administrative judge of the trial division, assigned this matter to the undersigned to conduct such evidentiary hearing and to determine whether Ms. DiMonte was denied a fair trial.

Although the plaintiff proceeded through her appeal and through all of the pre-hearing procedures in this matter pro se, she appeared at the hearing on October 4, 2000 represented by counsel, Robert Datner, Esquire. The defendant, Neumann Medical Center was represented by Jill Fisher, Esquire, and Judge Halbert was represented by Mitchell S. Clair, Esquire. This court heard three days of testimony from numerous witnesses for all parties and permitted counsel for the parties to present extensive closing arguments on October 11,2000.

TESTIMONY AND EVIDENCE

Plaintiff presented the testimony of five witnesses to substantiate her claims that the trial judge committed structural error at trial, the result of which was that she was denied a fair trial. The first of these witnesses was her trial attorney, James A. Francis, Esquire. Mr. Francis testified that he recalls numerous phone calls being made and received by the trial judge during trial. Although he was able to hear the judge’s voice, he was not able to distinguish any words or the content of any conversations. Mr. Francis also testified that on several occasions during the trial, the judge left the bench to adjust an air conditioning vent in the ceiling of the courtroom. During several instances, the judge enlisted the assistance of the jury foreman, Mr. Brian Ruff, to adjust the vent. The witness did not believe that any testimony was being taken on any of the occasions that the vent was being adjusted and recalled that these situations took place before testimony began or during a break. The witness also recalled the judge leaving the bench on several occasions during testimony to get a drink of water from the water cooler in the rear of the courtroom. Finally, Mr. Francis recalled the trial judge leaving the courtroom during his closing argument for approximately 15-BO seconds and returning with a piece of paper with the number “7” on it which was flashed to the view of the witness. Mr. Francis believed this was a signal from the trial judge, directed to him, that he had seven minutes remaining in his allotted time for closing argument.

The plantiff next presented the testimony of Mr. Brian Ruff, one of the jurors at the original trial. Mr. Ruff testified that he participated in the entire trial and was selected as the foreperson of the jury. The witness testified that he recalls the trial judge receiving frequent telephone calls during the trial, but could not remember whether such calls were taken by the judge during the testimony of any witnesses. Mr. Ruff recalled adjusting the ceiling vent himself several times since he was the tallest juror and recalls assisting the judge when he adjusted the vent. The witness testified that he did not recall there being any witnesses in the witness box while the vent adjusting was taking place and was sure the adjustments did not take place during the testimony of any witnesses. Finally, the witness testified that he did recall the trial judge leaving the courtroom for a brief period of time. Mr. Ruff frankly admitted that the jury never discussed the actions of the judge taking telephone calls, adjusting the vent or any other activity in the courtroom. The witness also admitted that he did not feel the judge was particularly hard on either party and did not favor one side over the other during the trial.

Mr. James R Carino Jr. next testified for the plaintiff and indicated that he was plaintiff’s expert witness at the time of trial. Mr. Carino testified that on at least two occasions during his testimony, the judge spoke on the telephone on the bench. On one of those occasions the judge confirmed a medical appointment which was to take place during the luncheon recess. The witness admitted that he was somewhat distracted by the phone call. Mr. Carino also testified that at one point during his testimony, the judge left the bench to climb on a table to adjust a ceiling vent. The witness believed that the judge may have called a halt for a moment or two while this action took place. The witness did admit on cross-examination that during this adjustment, there was no testimony being taken. At no time during his testimony, was this witness able to point out in the notes of testimony from the original trial where he was actually distracted by either the phone calls or the adjustment of the ceiling vent.

Plaintiff, Doreen DiMonte, then testified on her own behalf as to the conduct of Judge Halbert during the trial. Ms. DiMonte testified that the judge took and received numerous phone calls during the five-day trial. Ms. DiMonte testified that she was able to hear the content of the phone calls which ranged from medical appointments, tickets to the Met and dinner engagements. The witness also testified that there were “many different times” when the judge left the bench during trial. On one occasion during her testimony at trial, the judge paused the proceedings and left the bench to adjust the ceiling vent with the assistance of Mr. Ruff. The witness also recounted the instances in which the judge left the bench to go to the back of the courtroom to the water cooler for a drink of water. The witness also corroborated the testimony of Mr. Francis regarding the judge’s absence from the courtroom for “a moment or two” at which time the judge returned to signal that Mr. Francis had seven minutes remaining in his closing argument. Ms. DiMonte stated her opinion that the verdict was affected by the actions of the trial judge; since the conduct of the trial was not worth the judge’s attention it, therefore, was not worth the jury’s attention either.

As her final witness, the plaintiff presented the testimony of her husband, Dennis Lee Ardell. Mr. Ardell testified that at one point during his testimony the judge left the bench and entered an anteroom adjacent to the courtroom for a brief time and then returned to the courtroom asking that the witness’ answer be read back. The witness testified that the judge’s absence caused him to be “discombobulated” in his testimony. Mr. Ardell also testified that at various times he heard the judge speaking on the telephone regarding different business and social matters. Testimony was also given by this witness which stated that the judge adjusted the ceiling vent at least three times, in the three days he was present in the courtroom. The witness also testified that he observed the judge leave the courtroom briefly immediately preceding the signal to Mr. Francis that seven minutes remained for the closing argument.

At the conclusion of the plaintiff’s case, the defendants moved to dismiss the case based upon plaintiff’s failure to meet her burden of proving the alleged structural defects and the fact that the plaintiff had been denied her due process right to a fair trial. This court denied the motion and allowed the defendants to present testimony in opposition to plaintiff’s case.

The first witness presented by the defense was Patricia Quinn, a juror in the original trial. Ms. Quinn testified that the judge made her feel relaxed and important to be a juror. She felt the judge was respectful to the jurors, witnesses, attorneys and the parties themselves. In fact, at one point the witness felt that the judge favored the plaintiff and “was on her side.” Ms. Quinn recalled the judge on the telephone at one point but was not distracted by it due to the fact that she was attentive to the witness’ testimony. The witness remembered the judge adjusting the ceiling vent but did not feel that this act was disruptive or showed any lack of interest in the plaintiff’s case. Ms. Quinn summarized her testimony by admitting that nothing that the trial judge said or did during the course of the trial influenced her decision or her verdict.

The next defense witness called was Ms. Mary A. Mark, another juror. Ms. Mark testified that she did recall the judge standing on a table to adjust a ceiling vent, but that there was no testimony being heard at that time. The witness further explained that she heard nothing from the judge on the telephone about theater tickets, dinner reservations or any other matters. Ms. Mark testified that the judge paid attention to the entire trial, and at no time appeared biased.

Delores Jamison, another juror, then testified on behalf of the defense. Ms. Jamison testified that Judge Halbert acted in a professional manner in the conduct of the trial and at no point appeared biased in favor of or against any party. Ms. Jamison further testified that she did not recall the judge leaving the bench during the trial, but did observe the judge adjusting the ceiling vent prior to the start of a court session by standing on a table. This witness did not feel the judge did or said anything during the trial which influenced her decision and that her decision was based solely on the testimony of the witnesses.

The next witness presented by the defense was Gladys Fenichel M.D., a defense expert witness who testified at trial. This witness testified that she was present in the courtroom for approximately nine hours over two days and that at no time did she observe the judge on the telephone, leaving the courtroom, walking around the courtroom or adjusting ceiling vents. The judge treated all parties with respect and at no time displayed any conduct to indicate he did not take this case seriously.

The defense also presented the testimony of Ms. Janie Henderson, a juror in this case. Ms. Henderson testified that she did recall one occasion during the trial when the judge adjusted an air conditioning vent so that the jurors would be comfortable. The witness also recalls the judge receiving a few phone calls during the trial but was not distracted by same. The witness does not recall the judge leaving the courtroom or going to the back of the courtroom for water. Finally, the witness testified that nothing was said or done by the judge to influence the decision of this juror.

Another juror, Mr. Matthew J. Kelly, was then called by the defense. Mr. Kelly testified that he did observe the trial judge adjust a ceiling vent but was not distracted by this effort. The witness further testified that he did not recall the judge leaving the courtroom, making or receiving phone calls or walking around the courtroom and getting drinks of water. The witness did testify that he did not recall any distracting behavior by the judge and did not feel that the judge indicated in any way that this case was not important.

Ms. Carolyn E. Mohan, another juror, then testified for the defense. This witness testified that she recalled the judge taking a few telephone calls but none that disrupted the proceedings. She also testified that she recalled the judge adjusting the ceiling vent on two occasions, but on each occasion the proceedings had stopped and continued after the adjustment was made. The judge was at all times courteous to all parties and at no time showed any favoritism to either side.

Mr. Duane Norris Bedley, an employee of defendant, Neumann Medical Center, then testified. Mr. Bedley was present at defense counsel table during the trial but did not testify. Mr. Bedley testified that he did not recall any telephone calls made or received by the judge, nor did he recall the judge leaving the courtroom during the trial. He did recall the judge adjusting the ceiling vent prior to the opening addresses to the jury. The witness did recall some chuckling while the judge stood on the table and used a long stick to adjust the vent. At no time did the judge give the impression that he was not paying attention or that this case was not important.

Mary B. Lipinski, Esquire, the attorney for defendant, Assets Protection Inc., at trial, then testified for the defense. Ms. Lipinski testified that she was present in the courtroom throughout the entire trial and that on two or three occasions she witnessed the judge on the phone. She did not recall whether this was during testimony or during a break. Ms. Lipinski also witnessed the judge adjust the ceiling vent, however there was no testimony being taken at the time. The witness also stated that the judge did not walk around the courtroom and did not leave the courtroom. The judge, near the end of closing argument, did stand up and walk towards the jury box, indicating to counsel that he had seven minutes remaining in his closing. The witness testified without qualification that at no time did she feel that any actions of the judge, including the telephone calls, were distracting to her or anyone in the courtroom, including the jurors.

Next, the defense called Stephen Dickerman, the court reporter who was present during the trial and transcribed the notes of testimony of same. Mr. Dickerman has worked for Judge Halbert for the past six years. The witness recalls there being several incoming telephone calls since he noted same in the transcript. The witness also distinctly remembers the judge fixing and adjusting the ceiling vent since the room where this case was tried “oftentimes was stifling.” The customary practice was for the judge to say “excuse me” or some other phrase to stop the proceedings while he adjusted the vent and then to resume the testimony of the witness when this task was completed. Mr. Dickerman had no specific recollection of the judge walking around the courtroom or leaving the courtroom but did recall the judge getting up from the bench and walking to the doorway (out of the sight of the jury) during closing argument to signal to Mr. Francis that he had seven minutes remaining in his closing. This was indicated to be a common practice of Judge Halbert during closing arguments.

Next, the defense called the Honorable Marvin R. Halbert to testify as to his conduct during the trial of this case. Judge Halbert testified as to his judicial career and his accomplishments on the bench during the past 26 1/2 years. He specifically stated that he is particularly concerned with the stress suffered by jurors and tries at all times to make jurors comfortable and at ease in their position. This concern followed through into this case when on November 23,1998, the judge stopped the proceedings and adjusted the ceiling vent. See exhibit Halbert 3, p. 9,1. 18. The judge felt it was “too close” in the courtroom, meaning it was too warm and the temperature needed to be adjusted. Since the judge did not want to wait for hours for the building maintenance personnel to adjust the vent, he did so himself as he has done dozens of times in the past. The judge testified that he did not want to waste the jurors’ time and proceeded to make the adjustment himself. Judge Halbert testified at no time did he speak any words or perform any actions which would have indicated to the jury this was not an important case or the judge himself had any bias in favor of or against any party. Judge Halbert also addressed the phone calls taken by him during the course of the trial. At all instances when the record indicates a telephone interruption, the court took the call outside the presence of the jury and there was no distraction to the jury. On one occasion at the end of the first day, the judge did take a phone call on the bench. The judge testified that he never engaged in a telephone conversation at any time while testimony was being taken. Judge Halbert further denied leaving the courtroom at any time during the trial without explanation. The judge stated that he was present in the courtroom to hear all testimony and all objections and was able to rule on all objections. The judge did explain that he did enter the doorway of the courtroom, out of the sight of the jury, during the closing argument of Mr. Francis to signal to Mr. Francis the time remaining in his closing. The judge specifically stated that he did not, in fact, leave the courtroom. In sum, the trial judge indicated that at no time did he exhibit any conduct which would have indicated to the jury that he was biased or prejudiced regarding any party to this case.

Finally, the defense called Jill Fisher, Esquire, the attorney for the defendant, Neumann Medical Center. Ms. Fisher testified she recalled the judge taking a telephone call during testimony at the conclusion of the first day of trial, at which time he requested that the testimony be read back prior to sustaining her objection. She also recalled the two other telephone interruptions noted in the record and stated that there was no disruption to the testimony and no distraction to the jury. She also recalled the judge adjusting the ceiling vent prior to the opening statements on the first day of trial. She recalled that there may have been a second time the vent was adjusted by the judge, but could not specifically state that it happened. On neither occasion was testimony being taken. Ms. Fisher was specific in her testimony that at no time during the trial did the judge get up and walk around the courtroom during the testimony of any witness.

On rebuttal, the plaintiff recalled Mr. Dennis Amell concerning a conversation he had with attorney Jill Fisher. At the conclusion of this testimony, this proceeding terminated.

ANALYSIS

This court has reviewed the entire transcript of the jury trial presided over by Judge Halbert. Likewise, this court has reviewed the entire transcript of the testimony taken before this court in October, 2000. This review was undertaken to ascertain the presence of judicial comportment and the effect it had on the plaintiff’s due process right to a fair trial. This review was also undertaken with the mandate of United States v. Mortimer, 161 F.3d 240 (3d Cir. 1998) as. our guide. In Mortimer, the trial judge had disappeared from the courtroom, without advance notice or explanation, during the summation by defense counsel. The summation continued in the absence of the judge who actually reappeared in time to thank counsel for her closing speech. The United States Court of Appeals for the third Circuit held that:

“A trial consists of a contest between litigants before a judge. When the judge is absent at a ‘critical stage’ the forum is destroyed. There is no trial. The structure has been removed. There is no way of repairing it. The framework ‘within which the trial proceeds’ has been eliminated. The verdict is a nullity.” Mortimer, supra, (citations omitted)

Under the holding of Mortimer there is no need to demonstrate the prejudicial effect of the absence of the judge from the courtroom, only a need to demonstrate that the structural defect occurred. Therefore, this court’s review seeks proof from the witnesses who testified at the evidentiary hearing that Judge Halbert actually was absent from the courtroom at a critical stage so as to destroy the structure of the proceeding. Unfortunately for the plaintiff, there is no evidence to substantiate the claim that Judge Halbert was absent from the courtroom at any critical stage of the trial. While this court does not condone the presence of a telephone on the bench in front of a sitting jurist and is even more critical of the use of such telephone for non-court related business, the fact that Judge Halbert answered the phone and spoke briefly thereon regarding his lateness from a scheduled meeting does not qualify as Judge Halbert’s absence from the courtroom at a critical stage of the trial. Likewise, while the judge’s ascending a chair and positioning himself on a table, while garbed in his judicial robe and while being steadied by a juror, in order to adjust a ceiling heating vent to make the courtroom more comfortable for the jurors and the parties present is not what most observers would expect to see in a courtroom, it cannot be said that such conduct amounts to the removal of the judge from the courtroom at a critical stage of the proceedings. It should also be noted that there is no proof established in this hearing to demonstrate that any adjustments to the ceiling vent took place during the testimony of any witness. In fact, the evidence demonstrates that all such adjustments were made during brief recesses taken for this particular purpose and not while testimony was being elicited. The only remote incident in which plaintiff could claim that the trial judge removed himself from the proceedings is when the judge stood up and walked to a doorway leading out of the courtroom, which was out of the sight of the jurors, and held up a cardboard sign with the number seven on it as a signal to plaintiff’s counsel that he had seven minutes remaining in his closing speech. Although the judge may have been out of the sight of the jury for several seconds, the intent was to notify counsel of the time remaining without distracting the jury from the content of the speech being given. This hardly qualifies as the removal of the trial judge from the courtroom at a critical stage of the proceedings.

While it may be true that the trial judge spoke briefly on the telephone, adjusted ceiling vents and obtained a drink of water during the proceedings, there is no evidence that such conduct disrupted the trial and no evidence that such conduct interfered with the taking of testimony. Mr. Carino testified that the actions of the judge distracted him on occasion and Mr. Ardell testified that at one point he was discombobulated; however, the effect of the actions of the trial judge on the jury was minimal or nonexistent. Seven of the jurors who decided the verdict against the plaintiff testified in the evidentiary hearing held by this court. Each and every juror witness testified that they were not distracted by the actions of the trial judge and most denied that the judge actually left the courtroom at any time. These jurors were aware that the judge occasionally spoke on the telephone and adjusted the ceiling vent, but the same jurors frankly admitted that they were not distracted by such conduct. The jurors consistently testified that they did not find the actions of the trial judge to be indicative of the lack of importance of the case or his lack of interest therein. The jurors also consistently testified that their verdict was not based on any factor other than the testimony and evidence presented to them. In sum, the jurors were unanimous in stating that the actions of the trial judge had no effect on their verdict.

In conclusion, this court cannot and does not condone all of the behavior of Judge Halbert in the conduct of this trial. While some judges would not comport themselves in the same manner as Judge Halbert, it is clear from the record that his actions were motivated by a deep-seated belief that jurors should be treated with a great deal of respect and afforded the proper amount of comfort during their service to the judicial system. In his efforts to be productive and dispose of cases, Judge Halbert seeks the timely and orderly progression of the trials pending before him and tries to balance these goals against the need to treat jurors with respect and make their service a comfortable and rewarding experience. To him, this means climbing on chairs and tables to adjust the courtroom temperature to keep the parties and jurors comfortable. To the extent that this conduct may be deemed unconventional, this court concurs. To the extent that this conduct is alleged to have denied the plaintiff her due process rights to a fair trial, this court disagrees. The plaintiff has failed in her burden of establishing that structural error has occurred in the trial of this case. There is no proof that the actions of Judge Halbert removed the structural components required of plaintiff’s trial at any critical stage thereof. Likewise, there is no proof that the actions of the trial judge had any effect on plaintiff’s due process right to a fair trial. To the contrary, the evidence established in this court’s evidentiary hearing demonstrates that plaintiff received a fair trial based upon all of the evidence submitted by plaintiff and defendant.

The verdict of the jury should stand accordingly.


author: HERRON, J.,

text:
    Lang Tendons Inc. v. American Spring Wire Corp.

      C.P. of Philadelphia County,
    November Term 2000,
    no. 2695.

      Travis L. Kreiser, for plaintiff.

      Edward J. McGinn Jr., for defendant.
    February 5, 2001
   HERRON, J.,

Petitioner Lang Tendons Inc. has filed a petition to vacate arbitration award. Respondent American Spring Wire Corp. has filed a response and a request that judgment based on the disputed award be entered. For the reasons set forth in this opinion, the court is denying the petition and ordering that judgment in this matter be entered.

BACKGROUND

During 1990 and 1991, Lang purchased steel strand from ASW for use in constructing anchors in a project for Ram Engineering and Construction Inc. In the sales contracts, which were drafted by Lang, ASW warrants that the strand “shall be merchantable, shall be free from defects in materials, workmanship, design and title, shall conform to [Lang’s] specifications, drawings, descriptions and any approved sample, and shall be fit for [Lang’s] intended purpose.” Contract atf7. The contract also includes an arbitration provision stating that the contract is governed by Pennsylvania law and that, at Lang’s sole option, “all disputes are subject to arbitration according to the Construction Industry Arbitration Rules of the American Arbitration Association.” Contract at ¶14.

Ram discovered that the anchors were defective and instituted litigation against Lang. Because Lang alleged that the anchors’ defects were due to contamination left on the strand during ASW’s manufacturing process, it initiated an arbitration action against ASW pursuant to the contract’s arbitration clause. ASW responded with a counterclaim based on Lang’s failure to pay for the strand.

Arbitrator Samuel H. Karsch held evidentiary hearings on the parties’ claims pursuant to the American Arbitration Association Construction Industry Rules. According to Lang, Karsch improperly excluded evidence critical to its case, including parts of the testimony of Lang’s expert and a scholarly article that supported Lang’s expert’s theories. Karsch also refused to admit documents that allegedly constitute admissions of liability and causation on ASW’s part and prevented Lang from cross-examining ASW’s sole witness about the documents. When Lang asked to call a rebuttal witness, Karsch allegedly refused to allow the witness to be subpoenaed. Lang argues that this conduct violates the AAA rule that a hearing should be closed when the arbitrator is “satisfied that the presentation of the parties is complete.” AAA Construction Industry Rule R-35.

On October 27, 2000, Karsch issued an award that denied each party’s claim against the other. Lang subsequently filed the petition, asserting that the award is defective under the standards set forth in the Federal Arbitration Act and must be vacated. ASW responded by arguing that the award is governed by common-law arbitration rules, that there are no improprieties requiring vacation of the award and that judgment based on the award must be entered.

DISCUSSION

As a general rule, Pennsylvania favors the settlement of disputes by arbitration. Goral v. Fox Ridge Inc., 453 Pa. Super. 316, 321, 683 A.2d 931, 933 (1996). Under Pennsylvania law, which governs the contract, agreements to arbitrate are presumed to relate to common-law arbitration “unless the agreement to arbitrate is in writing and expressly provides for arbitration pursuant to” a specific statute. 42 Pa.C.S. §7302. Specifically, “[a]n agreement to arbitrate in accordance with the rules of the AAA is an agreement pursuant to common-law arbitration.” Midomo Co. v. Presbyterian Housing Development Co., 739 A.2d 180, 183 (Pa. Super. 1999) (citing, inter alia, Runewicz v. Keystone Insurance Co., 476 Pa. 456, 461, 383 A.2d 189, 191 (1978)).

Here, Lang demanded that the arbitration be held pursuant to the AAA Construction Industry Rules. In addition, there is no reference to an arbitration statute in paragraph 14, creating a presumption that the arbitration is of the common-law variety. This absence is even more damning in light of the fact that any ambiguity must be construed against Lang, as it was the contract’s drafter. See Reilly Associates v. Duryea Borough Sewer Authority, 428 Pa. Super. 460, 464, 631 A.2d 621, 623 (1993) (“a written agreement is construed against its drafter”).

If the contract did not have a choice of law provision, Lang’s arguments as to the FAA’s applicability might be more persuasive. However, the parties agreed that the contract would be governed by Pennsylvania law, of which section 7302 is a part. Because there is no mention of the FAA, as would be necessary for it to govern, the court must review the award as a common-law arbitration award.

A common-law arbitration award may be vacated only on very limited grounds:

“The award of an arbitrator in a nonjudicial arbitration which is not subject to subchapter A (relating to statutory arbitration) or a similar statute regulating nonjudicial arbitration proceedings is binding and may not be vacated or modified unless it is clearly shown that a party was denied a hearing or that fraud, misconduct, corruption or other irregularity caused the rendition of an unjust, inequitable or unconscionable award.” 42 Pa.C.S. §7341.

A party seeking vacation of a common-law arbitration award thus bears a heavy burden of proof. Allegheny Home Improvement Corp. v. Franklin, 308 Pa. Super. 225, 235, 454 A.2d 103, 108 (1982).

When a party petitioning to vacate an arbitration award presents inadequate evidence to support its argument, a court may not grant the party’s petition. In Carroll v. State Farm Mutual Automobile Insurance Co., 420 Pa. Super. 215, 616 A.2d 660 (1992), for example, the petitioning party did not present a transcript of the arbitration hearing, and the opposing party admitted no wrongdoing. This led the Superior Court to the following conclusion:

“As is evident from the preceding, the account of the plaintiff is presented in her brief, a factor which undermines our ability to place any credence in that which is asserted therein... . Even if such were not the case, the plaintiff fails in her effort to inform the court of the basis for the arbitrators’ award. In fact, she recommends that we ‘imply’ from the award issued the underlying rationale for the arbitrators’ actions. This is not consistent with either law or logic.” 420 Pa. Super. at 226-27, 616 A.2d at 666. (citations omitted) (emphasis in original) See also, Weinmann v. Meehan, 428 Pa. Super. 582, 586, 631 A.2d 684, 686 (1993) (where the party seeking vacation did not present a transcript of the arbitration hearing, there was no evidence that the party had raised an objection at the hearing, thus precluding consideration of the objection); Whitt v. Philadelphia Housing Authority, 325 Pa. Super. 135, 144, 472 A.2d 684, 689 (1984) (“[a] reviewing court may not second-guess a fact-finder, where, as here, there is no transcript of the testimony and the reviewing court thus has no means by which to weigh the sufficiency of the evidence or to change the factual findings made therefrom”).

In the instant matter, Lang has presented no evidence whatsoever to convince the court that Karsch’s actions rise to the level of misconduct required by section 7341. While Lang’s documents address the propriety of Karsch’s decisions, they rely entirely on argument and conclusory statements. No portion of any transcript has been submitted, and the only documents not authored by Lang or its counsel are the AAA Rules and three one-page notices from Karsch. Without additional evidence, the court cannot find that the requirements of section 7341 have been met and must deny the petition.

Under 42 Pa.C.S. §7342(b), a court must confirm a common-law arbitration award and enter judgment accordingly “[o]n application of a party made more than 30 days after an award is made . . . Here, the award was made more than 30 days ago, and ASW has requested that judgment in this matter be entered. Consequently, the court is obliged to confirm the award and enter judgment.

CONCLUSION

The principles governing common-law arbitration apply to the arbitration and preclude the court from vacating the award. As a result, the petition is denied, and the award is confirmed.

ORDER

And now, February 5,2001, upon consideration of the petitioner Lang Tendons Inc.’s petition to vacate arbitration award, the response thereto of respondent American Spring Wire Corp. and all other matters of record, and in accordance with the opinion being filed contemporaneously with this order, it is ordered and decreed that the petition is denied. The arbitration award in American Arbitration Association case no. 14110 00229 99 is confirmed, and judgment is entered accordingly.

      . 9 U.S.C. ch. 1.

      . Where a contract orders the application of Pennsylvania law, courts of the Commonwealth have followed the contract’s mandate. See e.g., Miller v. Allstate Insurance Co., 763 A.2d 401 (Pa. Super. 2000) (Pennsylvania procedure for vacation of arbitration awards applied where an insurance policy was governed by New Jersey law but required application of local rules of law for procedural purposes).

      . By contrast, in those Pennsylvania cases where the FAA is applied, either there is no reference to Pennsylvania law or the parties name the FAA specifically. See e.g., Williams v. Gruntal & Co., 447 Pa. Super. 357, 669 A.2d 387 (1995) (parties agreed that disputes would be resolved by arbitration conducted pursuant to the FAA); Dickler v. Shearson Lehman Hutton Inc., 408 Pa. Super. 286, 596 A.2d 860(1991) (no choice of Pennsylvania law provision noted). Cf. Borgia v. Prudential Insurance Co., 561 Pa. 434, 750 A.2d 843 (2000) (where no statute was specified in the arbitration clause, common-law arbitration rules applied); Mid-Atlantic Toyota Distributors Inc. v. Charles A. Bott Inc., 101 Pa. Commw. 46, 515 A.2d 633 (1986) (where contract requiring arbitration mandated that the contract be modified to conform to the laws of the state of performance, Pennsylvania law prevented application of the FAA). Similarly, federal cases applying the FAA are inapposite here, as the facts in those cases do not indicate that there was a choice of law provision. See e.g., Southland Corp. v.

        Keating, 465 U.S. 1 (1984) (no choice of law provision mentioned in concluding that the FAA applied); Pennsylvania Data Entry Inc. v. Nixdorf Computer Corp., 762 F. Supp. 96 (E.D. Pa. 1996) (same).

      . This differs from a statutory arbitration award, which a court may vacate on a wider range of grounds, including evident partiality. 42 Pa.C.S. §7314.

      . ASW also requests attorneys’ fees and costs. However, “a litigant cannot recover counsel fees from an adverse party unless there is express statutory authorization, a clear agreement of the parties, or some other established exception.” Snyder v. Snyder, 533 Pa. 203, 212, 620 A.2d 1133, 1138 (1993). Because ASW does not have any basis for requesting attorneys’ fees, its request is denied.