PALERMO MASONRY, INC. v. SHORE BUILDING CONTRACTORS, INC.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0050-05T50050-05T5

PALERMO MASONRY, INC.,

Plaintiff-Respondent,

v.

SHORE BUILDING CONTRACTORS, INC.,

Defendant-Appellant.

___________________________________

 

Argued May 15, 2006 - Decided June 6, 2006

Before Judges Lintner and Parrillo.

On appeal from the Superior Court of

New Jersey, Law Division, Atlantic County,

L-2873-05.

John F. Palladino, argued the cause for appellant (Hankin Sandman & Palladino, attorneys; Mr. Palladino, on the brief).

Paul A. Bucco argued the cause for respondent (Davis, Bucco & Ardizzi, attorneys; John G. Richards, II, on the brief).

PER CURIAM

This appeal arises from a contract dispute between plaintiff, Palermo Masonry, Inc., a masonry subcontractor, and defendant, general contractor Shore Building Contractors, Inc., for work Palermo did at the Resorts International Hotel and Casino in Atlantic City. The contract required all disputes to be "resolved exclusively by Arbitration in accordance with the rules of the American Arbitration Association" (AAA). Plaintiff filed for arbitration, claiming that it was entitled to monies from defendant for retainage and overtime work. The parties agreed on the arbitrator from a list of names supplied by the AAA. Following pre-arbitration conferences and submission of documents by both sides, an arbitration hearing was held on January 14, 2005. On January 17, 2005, plaintiff's counsel sent, via facsimile and regular mail, a letter to the AAA case manager, stating:

A hearing was conducted in the above- captioned matter on Friday, January 14, 2005. At the Hearing there were certain representations made by Shore Contractors regarding contract negotiations and contract price. After a thorough review of Claimants' documents, a document was discovered that rebuts Respondent's testimony.

Based upon the above, I would respectfully request that the hearing be re-opened in order for this document to [be] submitted. I am attaching a copy of the document for your review.

Defendant's counsel responded on January 17, 2005.

Kindly accept this letter in response . . . . [Claimant's] letter seeks to "re-open" the arbitration to admit a document which he alleges rebuts testimony which took place during the arbitration hearing. In the first instance, the document itself appears to have been in possession of the claimant for very nearly two and a half years. Accordingly, it is absolutely incredible that he would seek to introduce it now, as if it were some newly discovered evidence. Moreover, it is entirely unfair to attempt to introduce this evidence without giving the respondent an opportunity to explain it, which can easily be done.

For the above reasons, we would respectfully request that the document be excluded from evidence. In the alternative, if the document is admitted, the respondent must be given an opportunity to testify in front of [the arbitrator] as to its significance.

The very document challenged by defendant had been included in the binder of exhibits submitted by defendant, which the arbitrator had reviewed prior to and following the hearing. On January 19, 2005, the arbitrator wrote the AAA case manager, explaining that he had read the parties' correspondence and had previously reviewed defendant's document and saw "no need to re-open the hearing at this point to cover a document with which [he was] already familiar." On February 9, 2005, the arbitrator entered his award for the total amount of plaintiff's claim.

After entry of the arbitrator's award, both plaintiff and defendant filed pleadings in the Law Division, plaintiff seeking to confirm the award and defendant seeking to vacate the award. Judge Perskie heard oral argument on July 22, 2005. Defendant argued that, although the document in question had indeed been exchanged by the parties and submitted to the arbitrator, it was improper for the arbitrator to consider it without it being placed into evidence. Defendant also maintained that the Arbitrator's refusal to re-open the hearing was a violation of N.J.S.A. 2A:24-8(c), which requires a court to vacate an award [w]here an arbitrator is "guilty of misconduct in refusing to postpone the hearing" upon a showing of "sufficient cause" or "in refusing to hear evidence, pertinent and material to the controversy . . . ." Defendant argued that the arbitrator violated the AAA rules by considering a document never introduced into evidence and by permitting plaintiff to argue the document's import without allowing defendant an opportunity for rebuttal after the hearing was closed.

Judge Perskie rejected defendant's contention that there was a distinction between the document being submitted to the arbitrator prior to the hearing and the failure to have it formally admitted into evidence. He found:

I think in either event the arbitrator was well within his discretion and his authority to act as he did. The document was known to both parties. It was known to both parties to have been submitted to the arbitrator. It was known to both parties to have been available for his review before and during the hearing. The fact that no reference to it was made during a hearing or that [it was] specifically moved into evidence at the hearing is not, in my view, of any legal significance. The arbitrator, in my opinion, had the authority, which he apparently exercised, to consider the document that had been submitted to him with the knowledge of both parties, without having had it formally introduced into evidence as we would in a judicial proceeding. I perceive nothing in the rules or in the intent of the arbitration process to preclude that exercise of discretion. I perceive nothing in that exercise of his discretion to constitute the kind of violation of the statute in terms of refusing to hear evidence that the statute set up as a standard for vacating an award. For all of those reasons, I will enter an order confirming the award of the arbitrator and enter a judgment thereon.

On appeal, defendant reprises the same arguments made before Judge Perskie. It maintains that although it submitted the challenged document prior to the hearing, "the arbitrator violated the AAA Rules and Procedures by (1) considering the Document despite the fact it was never introduced into evidence; (2) re-opening the hearing to accept the Document and Palermo's comments concerning its significance; and (3) refusing to allow Shore to rebut the Document and Palermo's argument regarding same." We find no error in the proceedings, and affirm essentially for the reasons given by Judge Perskie in his opinion of July 22, 2005. Defendant's arguments are devoid of merit and do not warrant further discussion in a written opinion. R. 2:11-3(e)(1)(A) and (E). We, however, add the following brief comment.

We do not find a violation of N.J.S.A. 2A:24-8c. Because the arbitrator already had the document, there was no refusal to hear evidence as proscribed by the statute, much less misconduct on the arbitrator's part. Contrary to defendant's contentions, the record reveals that the arbitrator did not re-open the hearing, but instead concluded that there was no need to re-open it because he had already reviewed and considered the document. There was no fraud, corruption, or similar wrongdoing on the part of the arbitrator, to justify vacation of the award. Tretina Printing, Inc. v. Fitzpatrick & Assocs., Inc., 135 N.J. 349, 358 (1994).

Affirmed.

 

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A-0050-05T5

June 6, 2006