### J-A33020- 14

*Retired Senior Judge assigned to the Superior Court. NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37 MARY FRANCES F. SILBERMAN AND ROBERT M. SILBERMAN, H/W

v. VITO LOGUIDICE, M.D., CHRISTOPHER R. FERRANTE, M.D., ORTHOPEDIC ASSOCIATES OF THE GREATER LEHIGH VALLEY AND NUVASIVE, INC. APPEAL OF: ORTHOPEDIC ASSOCIATES OF THE GREATER LEHIGH VALLEY, P.A. AND AGGRIEVED PARTIES, ATTORNEY DANIEL J. FERHAT AND WHITE AND WILLIAMS, LLP : : : : : : : : : : : : : : : IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 921 EDA 2014 Appeal from the Judgment Entered March 19, 2014, in the Court of Common Pleas of Northampton County, Civil Division, at No(s): C
-48-CV-2009-9456 BEFORE: LAZARUS, WECHT, and STRASSBURGER,* JJ. MEMORANDUM BY STRASSBURGER, J.: FILED FEBRUARY 13, 2015 Daniel J. Ferhat, Esquire (Attorney Ferhat) and White and Williams, LLP (collectively, Appellants) appeal from the judgment entered March 19, 2014. Specifically, Appellants challenge the trial court order imposing sanctions upon Attorney Ferhat in the amount of $34,646.40. We affirm. The certified record reveals the following facts. Appellants represented defendant Vito Loguidice, M.D., in the underlying medical malpractice action filed by Mary Frances F. and Robert Silberman (collectively, Plaintiffs), in which Plaintiffs alleged that Dr. Loguidice caused injury to Mrs. Silberman during the course of orthopedic surgery. The matter was scheduled for a

### J-A33020- 14

- 2 -

jury trial on November 18, 2013. On the day of trial, prior to jury selection, the trial court met with the parties to discuss the possibility of settlement. At Attorney Ferhat’s suggestion, the parties agreed to submit the matter to binding arbitration with a high
-low agreement. After lengthy negotiations, the terms of the agreement to arbitrate were set forth on the record. Following the conference, Attorney Ferhat raised the issue of exclusion of delay damages. While the parties did not agree that delay damages were excludable, after some additional discussions, the parties placed an agreement on the record that, if delay damages were awarded, that amount, when added to the arbitrator’s initial award, could not exceed the agreed upon high limit. On November 18, 2013, upon learning that the agreed upon arbitrator, JAMS, was available that week, counsel for Plaintiffs filed the necessary paperwork and payments to schedule arbitration. The following day, Attorney Ferhat forwarded to Plaintiffs’ counsel a document he had drafted which purported to be a written arbitration agreement. That document contained a number of additional terms to which the parties had not agreed on the record. 1 

### Accordingly, Plaintiffs, at the advice of counsel, refused to sign the document on the basis that they would not renegotiate the

1 

### This included a provision to exclude delay damages and a provision that Plaintiffs would look only to Dr. Loguidice’s insurer for payment of any award.

### J-A33020- 14

- 3 -

agreement set forth on the record on November 18, 20 13. In response, Attorney Ferhat refused to sign the JAMS arbitration agreement or submit defendants’ fee, claiming that there had not been a meeting of the minds and, thus, no agreement to arbitrate. Attorney Ferhat reiterated this position during a telephone conference with Plaintiffs’ counsel and the trial court on November 20, 2013. During that conference, in addition to minor logistical and housekeeping matters, Attorney Ferhat insisted that he had not agreed that delay damages could be recovered in arbitration, and claimed that arbitration could not proceed unless delay damages were excluded. Later that day, Attorney Ferhat informed Plaintiffs’ counsel and JAMS that he was cancelling the arbitration. On December 11, 2013, counsel for Plaintiffs fi led a motion seeking counsel fees, costs and sanctions against Appellants. On that date, following the filing of Plaintiffs’ motion, Attorney Ferhat informed Plaintiffs’ counsel stating that he “would like to proceed with arbitration, with delay damages
as a possible element of recovery.” Trial Court Opinion, 1/22/2014, at 11. On January 22, 2014, following a hearing on Plaintiffs’ motion, the trial court determined that Attorney Ferhat’s conduct in delaying, and ultimately refusing, arbitration was obdu rate, vexatious, and dilatory, and entered an

### J-A33020- 14

- 4 -

order directing Attorney Ferhat to pay sanctions in the amount of $34,646.40 to Plaintiffs’ counsel. 2 

### On March 19, 2014, counsel for Plaintiffs filed a praecipe to settle, discontinue, and end the underlying medical malpractice case. Following the entry of judgment in the underlying matter, Attorney Ferhat timely filed a notice of appeal. He presents the following questions for our review. 1. Did the trial court commit an error of law in awarding sanctions against Attorney Ferhat for refusing to participate in a private arbitration where: (a) his opposing counsel would not agree to sign a general release, which the trial court erroneously determined was only a “housekeeping” matter, as a condition of the arbitration agreement; (b) the trial court recognized and stated that the issue of confidentiality had not been addressed or agreed upon by the parties; and (c) the trial court erroneously concluded that delay damages were awardable as a matter of right in private arbitrations? 2. Did the trial court commit an error of law in awarding sanctions against Attorney Ferhat for refusing to participate in a private arbitration without a written arbitration agreement when: (a) the trial court’s finding of dilatory, obd urate, and vexatious behavior was unsupported in fact or law; (b) Defendants agreed to arbitrate the case before the time period to complete the arbitration expired; and (c) the agreed
-upon arbitrator
— JAMS

— would not even agree to arbitrate the case without either an executed arbitration agreement between the parties, which [plaintiffs’] counsel would not sign, or a court order appointing JAMS as an arbitrator, which the trial court did not issue? Appellants’ Brief at 3 (trial court answers omitted).

2 

### Attorney Ferhat filed a timely motion for reconsideration, which was denied by the trial court on April 7, 2014.

### J-A33020- 14

- 5 -

Following our review of the certified record, the briefs for the parties, and the relevant law, we conclude that the opinions of the Honorable Paula A. Roscoli thoroughly address and correctly dispose of Appellants’ issues and supporting arguments. Accord ingly, we adopt the trial court’s opinions of January 22, 2014 and June 4, 2014 as our own, and affirm the court’s disposition of Appellants’ issues on the basis of those opinions. The parties shall attach copies of the trial court’s January 22, 2014 and June 4, 2014 opinions to this memorandum in the event of further proceedings. Order affirmed. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 2/13/2015Circulated 02/06/2015 03:23 PM



### IN THE,COURT OF COMMON PLEAS OF NORTHAMPTON COUNTY 

### ,-"" ,,"**""""'C"()M~fONW'EALfH'(lF' p1~NN** 

### S'YCV'ANiA'-'-' " CIVIl DIVISION MARY FRANCES SILEE:RMAN and 

### ROEERTM, SILEERMAN, Plaintiffs,


### v. VITO l.OGUIDICE, 

## M.D. and ORTHOPA'EOic ASSOCIATES ,OF 

### ,THE GREATER LfHIGH VALLElY,'

. Defendants. . 

# ,. J

,**~**



### • 

## , '



### OPhNION OF 

### THE COU{tT**:~,.** rh E ; I 

# CJ

This matter is b¢fore the -Court on Plaintiffs' Motion 

## 'to Assess Counsel

" 

## .

, ' Fees, ,Costs, and· Sanction,s, which,motion was filed as a result of defen;:;e coun$el 1s .failure to proceed to- bfnding arbitration in this' matter as agreed by the p'arties on November 18, 2013. Following a hearing and argument on the

. . . ..' ..... . 

# '.**motlo~l.** we he'reby, make the, followlng 1 : I. Findings of Fact 1. 'This case 

# is a medical malpractice case i"n 'whlch Plaintiff'

### M~ry F'rances Silbe rman**d~** Ims that Defe nda**n~** Dr. Vito' Loguidice caused injury to her during the course ofortrlOpaedlc surgery.

:I Due to oversight, flO OIW formally moved any of the exhibits into eVldance nt the conclusJon of the hearIng. This was brought to the**a~tentJon** of the Court by correspondence from Attorney Miller of JanuarY 21 2014 1 In Whl(;h he asked that the Court accept the exhibits Into evidence, Attorney Farhat was ,contacted seeking hIs position and chose not tu ' I·espond. "The admlsslon or exclusion of additional evidence after the evidence Is c!ose'd Is a matter within·the dIscretion of the trleJl court[,]" Silver v, Miller, 201 A.2d 308, 30g (Pa, 5Upp.r. 1964). Given that <iH exhibits by both pailles were presented to the Court during the**he~,rlJlg** without objectIon, we have chosoll to ndmit the exhrbits as**reql.lf:!s~ed.**

439aCirculated 02/06/2015 03:23 PM



### 2. proceed to a jury trial in this mattei' on November 

### 18, 2013, 3; Likewise; a ·panel.of jurors was avajlabJe. to hear the case, and the Court was prepared to conduct the trial commenc!0g ?aid date, 4, Prior to beQin0ing 

## voir dire, the Court held a conference 

## with

. counsel 

# In**ord~r.** 

### to determine jf there was any possibility for settlement.

. 

## . . 

### 5, ' At that time, Daniel 

### J. Ferhat, Esq., cou!1sel for Defe,ndants, stated that ther.e

### w~s**.~o** pOSSibility of settlement, but ·that h'e wished' to explore the



### . . possibility. of submitting the matter' to' binding arbitration With 

### a hIgh-low

.

### ~g reemf}nt2
,

. . .

. 6. 'Attorney Ferhat had previously made this suggestion in a phone call to PlaintIffs' counsel'on November 

### 13·,.i013, 

### 7. : Plaintiffs were 'initlally' opposed to arbItration, 'but after discussion

. 

### .

.. with counsel on November 

### 18', 2013, they decided that they would agr.ee ..

### to proceed In said manner, with'an agreed-upon

### hlgh"lo~. .



### .'
. 8. :**Couns~1** spent a number of hOurs, with the assistance of the Court, determining agreeable high and low dollar ·flgures to apply to the arbitration, as we!!**~s** 'who 

### the arbitrator would be, 

### .9. The high and low dallal' figures were ultimately agreed upon by all partIes and all counsel,as were the names of two potentia! arbitrators; 'Phil Hof, Esq. and**~erry** Roscoe, Esq.

2 As'the high and low dollar amounts' of the agl'c9m**en~** are confidential, the Court mal<E:s no reference herein·to the speCific amounts, Page /. of 11

440aCirculated 02/06/2015 03:23 PM

10. The only additional terms discussed durlng the conference were the

..... '-;-
....- ...... - ........ -"'--""'--.". P"_. '"
.............__.......... - •••__.__ ...."
....,......__ ...... .._ ......... ....__............ _ .•... ".'
.................................... ___.............._ ......__.........__. ,,,,,,___.,,.,,,,,,__,,,,.,, , ............ timing of the arbitration and 'the method of presentation of expert witnesses

.

. 11. Following the conference, cOllnsol and the Court set forth on. the record the terms of the agreement,

. 12. The terms ·of the agreement were: thaf the parties would proceed

### t~ bindj.ng arb!t(ation with the

### h!gh~low agreement;

### ~that either Phil 

### Hof; ·Esq. or .' 

### . .

### ~erry R·oscoe, Esq. ··wouJd conduct the \arbitratloni that w.hich.ever·of the two

. . sqggested arbitratorS. was available first would conduct the arbitrationi that the·

### arbitrati~n would'take

### pla~e that week If either arbitrq,torwas,available to do so, given**t~at** all parties had cleared th·eir, schedules for the Week' and given th.at



### . .. '. Pia IntifFs had travelled from Georg la to attend the trial; that 

### In the "event that

, 

### . . 

## . the·.arbitration could not be'conducted that week, that 

### it would· take place within' .slxty.(60) days; and that no**~x~erts** would be brought in to testify Jive. for either, party, ' but

.

### rat~e'r their' reports" would be subrr1itted into evIdence for

.' l' consideration by the arbitrator', (N.T. 11/18/13/ pp.2 n 5),

. . 

### :l3..
. After this agreement was set fO/th .on the record, Attorney Ferhat '. attempte'd toin?ert additional terms Into the**agreem~nt,** to whJch· Plaintiffs and.**~**

their.counsel were not' agreeahle

.. ,(N.T 11/:18/13; pp,5-10). 14. One such a.dditional term raised by. Attorney Ferhat· was the e·xclllsion 

### of any possible recovery of delay damages. (N.T. 11/18/13/ p.8). 15. Plaintiffs and their counsel did not agree. to such a term, and a

.thorough di5cusslon took**plac~** on the. recor9 among**couns~1 ~md**  the Court regarding same. (N.T. 11/18/13, pp.8-10). Page 3 of 11

44.1aCirculated 02/06/2015 03:23 PM



### 16
. At the,cQncJusion of that discussion, It was 

### dear that the parties did

.. .•._ .•.._ . .•. .•. __ .' _ . .,.•.. _ •...• ..__ •••".•___ •. .• _._. ._. '" ••...,.__ ...... "."
... _•.,_ ."'
__."."
......... "'-' 0.'._••". _, ..... __•.. ..•...•.. , ..•____ . -- ..- ... -_.... "."
..__... -_...."'-'-'-" - ._.. ...................... - - ...... _ ...._ •. ""7-'

.....,••_."•. - ..... -, .. ,..... . -

"

'. ' not agree that delay damages wel'ean excfuda'ble measure of damages. 

### It was agreed, however, that any delay damages thLl.t m('jy be awarded could not, when added to the' arbitrator's inItial award, exceed the high agreed to by the parties. (N.T. 

### 11/18/13', p.l0). 

### '17. The proceedings were concluded and the jury pan'e) dlsm!5ised/ with the 

### Court and nil parties 'being of the ,understanding that the matter woulq be

. . , . 

### . .',',' arb(trated 'as agreed, (N .T. 

### P/i8/13j p.tO). '



### , lB. , Following same, the Court' contacted 'the

### agreed-upo~, arbitrators and determined that Jerry Roscoe, ,t:sq. wa£ available to hear the case that ,week, OF], November 

### ,21, 2013and/br' 'November '22,' 

### 2013. The' parties, and counsel, ,thel:e'aftel:' left the (;ourthouse with 'the understandIng, '. that. the arbitration would take piace on one:or both of those dates, 

### 19. Had Attorney Ferhat not agreed that' th'e arbitrator 'COUld award delay dpmnges, If appropriate, 

### 'in an amount**su~h** that the total award wo,uld " ,not' exceed the agreed-upon

### high~ Plaintiffs wbllid' have,

### p'urs~ed a 'jUlY ,trial on' ': November 

### 18, 2013, 

### " ' 20, On November 

### 18; 2013/ Attorney Todd Miller, 'counsel for PIClintlffs,**~xecute.d** the, necessary paperwork provided by JAMS, th'e entity by which the 

### Mr. Roscoe is employed, and sent same, along with Plaintiffs' share of the initIal

, ,**non~rerundab!e** fee deposit, In the amount of four' hundred dollars ($400.00), via FedEx 

### Priority Overnight, 

### at a 

### cost of twenty dollars and fifty cents ($20.50),
Page 4 of 

### H

442aCirculated 02/06/2015 03:23 PM

Miller. and Attorn'ey Steven Bergstein, counsel 

### for. P!a.1ntlffs, a document he 

### had,**~raftcd** purporting to' be a written arbitration agreement, 22" Contained in that document' were several terms 

### which ,had neither been discussed nor agreed upon by 

### the parties, includIng a provision excluding



# . ' delay, damages and' a pro.vision that Plaintiffs would look only to ,Defendants' ,insurer for payment of any award. ' 23;,',**Attorney~** MiHE!r and Be:gstein indicated**th~t,** the'y would

..not. agree,

, • ,< nor would they" 'ad,vise their clients to agree, to sign the, document provided by' Attorney "Ferhat, on the grounds that an agreement to arbitrate had already

, , been reached In the courtroom, and that they, woufd not now renegotiate that**agr~ement.** ' ,24',

### Be~ause PlaintIffs' counsel declined to' sign,the' docurnent; Attorney Ferhat refused to, sign the' JAMS agreement 'or re'mlt Defendants' share of the fee deposit, " -25,' Att?rney Ferhat took 

### the,' posltio'", q?spite a' clear record to the contrary, that thel'e 

### had 'not been a meeting, of the 

### minds 

# on Nov'ember 18,

. 2013 and 

### that there was no agreement"to arbitrate, '

.. 26. ' Attorney Miller, by correspondence of, November' 19, 2013, requested that Attorney Ferhat execute the JAMS ag,reement and submit the fee deposit so that 

### the arbitration could proceed as**pl~nned.**

Page 5 of 11 

### £1/9 'd**S~tO 'Ol~**  443nCirculated 02/06/2015 03:23 PM

27. On November 20, 2013, the Court held a telephone conference with

-- .... __..__.,.-.-- ._--"

..... "'---"'"

............. __....'- "

........-..... '---_.«

..",

.........._--_._ ...._- ..__.................... -.-...,............._ ....."

.., .., ... ,

.......................................__.....-.._-_.. - ...........................-........................................,_............................................................ Attorneys Miller and Ferhat In order to assist the parties ih movin'g forWard wIth



### . . '. the arbitration. 

### 28. During that conference, Attorney Ferhat insisted**th~t** a numb'er of material term,s had not**been,discu~sEld** in coming to the arbItration agreement ,that had been p'laced' on the record,that there was 'accordingly no agreement,

. , 

### and**~hat** he could :not proceed to arb!tratlon. 29.,' The issues raised by Attorney Fer-hat 'in' that teleplione, conference

- . , ,'. '. .' Included q number'of logistical and housekeeping, rssu'es that were not material

. '. 

## . , 

### . '

. terms, such as th,e location ,of the arbltr;;ltlon, a general release, and, flsts of

## w{tness~s~ All such

## is~ues were discussed 'and easily

## agr~ed upon between Attorneys Miller and Ferhi:jt during the telephone cO,nference" 

### 30. 

# in**~ddition'** to these minor issues, Attorney Ferh'at,'again

### r~ised the Issue', of delay' damages,and insisted that he had 'neyer agreed, ,nor 'had he intended to agree, that delay damages- -could be r,et.:overed' in the' a'rbitration,



### . . . . ,despite a 'clear 'reco('d to 'the contrary. Attorney Ferhat insisted that the

, " arb'ltratlon .co{,)fd not pro'ceed, if delay- ,d am age;; Were nonaken off the t;;lble. ' 

### 31. ,Later' 01'1 November 

### 20,,2013, Attorney Ferhat Informed Attorney Bergstein and JAMS that he was cancelling the arbitratIon. ' 

### 32. 'Plaintiffs spent five hundred forty seven dollars and sixty cents 

### ($547.60) Jor airFare to attend the Nove'mber trIal. 

### 33., PlaIntiffs spent one thousand two hundred twenty four dollars and thirty cents 

### ($1,224.30) for lodgfng 

### to attend the November trial. Page 

### 6 of 11 

### EI/L 

### 'd SSIO 'oN
444aCirculated 02/06/2015 03:23 PM



### . ,,.'
.. ,',. ,," '-'''.34"""""**PJ~1.r-Jtiffs,sp.e**

### nLhyo
....hu 

### ndre.cLniflc;l"Q

### 9JJ9.f.§.<:!09:**f!f!;Y-,G.~.t'Lt,?Jt?Q9.**

## ?Q1.:.,m""

..."_""

....,.. , for a rental c.;:tr and gas to attend the November trial, 35. Attorney MiJler spent three· hundred sIxty dollars ($360,00) on subpoenas 

### for witnesses to testify at the November trial.

.. 

### ·36, Attorney Miller spent seven hundred dollars ($700.0,0) .on video services for the presentation of 'evid ence at the Noyen')ber tra11.

. 37,**As'~** result· of .J\ttorney' Ferh.;:tt's deciSion to agree, to arbitration. in lieu of a

### t~ial. and then to

### c~ncol the

### a!bft~ation in breacl1

.. of.the' p'.artles' agreement, 'Plaintiffs wiJl be required to

## ~xpend. additional, sums 'of money'

# to returl)·to'the**L~highVaJley** for disposition of this c'ase. ,38, Similarly, Attorney M!lIer' will have ,to pay'the above ,sums a second time In order to d1spose o'f this case,3 39. 'Attbrney Miller spent 

### 160 hours from November 2, 

### 2913 througll November 

### 17, 2013 preparlrig for trial, '10. , Attorney**Be-:gst~ln** spent**~9.3** hours from. October, 

### 31 1 201-3 through Novembet 

### 17, 2013 preparing for.trla]·,

.... :. 41.', Attorney Miller spent 

### 21.5 hours 

### fi'OrrJ. November 197 

### 2013 thr·ough JanuarY.2} 

### 2014 on work brought about 

### by Attorney Ferhat's refusal to proceed wIth the arbitration,

,**~** Attorney MIller also, tl;!Otlfisd at the hearing on the present motion that he paid (l nonrefundable fee of ten thousand dollars ($10,000) to secure the presence of a keY' expert " witness at trial, which he would have to pay a second tIme for a future trial. However, given the parties' agreement to submit. only expert reports to the ,arbitrator, as well as the. Court's

.findIng, below, that this case should proceed to arbitration, we Find that no expense for thl;, witnes5 W?JS occasioned by Attorney Ferhat's conduct, and accordingly we conclude that no portion of the witness fee 15**~** r0coverable elemr.mt 

## of damages, Page 7 of 

### 11 

### f 

### l/8 'J 

### S**~** 

### \ 0 . 0

### N
445aCirculated 02/06/2015 03:23 PM



## ..._ .....**~.2..~**

## ...:**.8.~~~.!!~Y..§ ~.r.g** **~~~}~**

# .. §

### p~~t..'

### f).s.~?**~9_U.~**

### ..**r~?~.:~9.'1.~.fT!.~_~.r.**

## ..**.1..~I.., ?~.1.3.** .... _m... ....... ... ..... ...... ............. through Jan uary.2, 2CJ14 on work brought about by Attorney Ferhat's.refusal. to proceed with the arbitration. 43. Attorneys MIller and 8ergstein'

### antjcip~te spending, at 'Ieast half of theiroriginaJ trial preparation hours, noted abQye, in ord'er to come back up to 

## .'

. speed to dispose of this 'case, 44,

..8oth Att.or!1ey Miller and Attorney 8ergsteinhave 

## an hourly rate of**thr~e,** hundred fifty dollars 

### ($350.00).

. ... 45. The within petition waS filed on December 

### 5, 2013. 46. On December 

## ii, 2013, following 'the filing of the Motion to:Assess

. Counsel Fees, Cos'ts, and Sanctions; and fur.·the 'first time since. the· agreement

. '. -, . 

## . .

.was

### rea~hed, Attorney .Ferhat

### ~o~responded .with 'counsel, staU'ng {hat'he wquld Ilke to' proceed with the arbitration, with delay dama!;les as a .possible element of recovery, 47. There is no eVidence to suggest that Attorney Ferhat's conduct**r;lf~~r** -\' 

### November 18" 

### 2013 was

### ~sanctioned by Defendants, Vito' Loguidice! 

### M, D, 'or

v.,ras aW<;1re .of tile position**or~ctlon5** pf·Attorney Ferhat In attempting ,to' re**negotj~ts!** the arbitration ag reement, 4

1. During the COUrse of·the hearing on the presemt motion; PI(ljntlffs' counsel In'dlcated tf)<lt they were cOl1templatlng filing g motion for default Judgment as a s(-!nctlon for Attorney Ferhat's**c6ndu~t.** AS the Court Indicated at that time, we believe that $t..Jch g sanction would Improperly penalize .the Defcnd;;mls, who hgve not conducted themselves

.Inappropriately with respect to the arbitration, Rather', the proper course is to sanction Attorney Ferhgt, as 

### se t forth below, Page IJ of 11 

### SI/6 'd**~~IO** 

### 'ON.
446aCirculated 02/06/2015 03:23 PM



## ..................._ ... _.**4~~** 

## .....**t:J..~i~.h _~r..y!~.<?_**  .Lo

### ~~!9.ic.~

# ...**~.:. Q:._.?~._grF_h?p** 

### i3:ed iC.

### ..p's.~9**~ia !~~**  

## ..**~.f..** the Greater Lehigh Valley appeared at the 'hear.ing on this mot.lon

.. 49. Attorney Ferhat offered no testimony at the hearing on this motion! and therefore the testImony of Attorneys .Miller and' Bergstein was uncontroverted•. 

### II. Conclusions of 

### Law,

, ' 

### . 

### 1.**':'TeGhnic~1** ,words are .not,requlred to make a binding reference [to arbitration]; and .tlle form of**~ubmissio'nis** tiot important, if it clearlY appears'·

. , that**~he** Intent was to submIt differences to arbitration, and to abide by the



### . . award:" 

### Somerset BOroUg/l 

### v: Ott, ·56 A. 

### 1079 (PEL 

### 1904).

, 2. All'**m~terlal** 

### terms of the' .partles' arbitra'tion .agreement were set, forth on the record on November. 18,'201::? ,. 3. Th

# e**agreet~**ent 

### 'set forth on th e record at. that time constituted

### ~' binding ,arid enforceable agreement to' arbitrate the Issues 

# In this easel in accordance ,withtlJe

### te~ms noted in

### ~12' abov'e

. 

### .4. '" ,Attorney Ferhat's 'ciaimthat there 'was no**me~tJng** of. the minds and

. ,hence 'no a'gr.eement to arbItrate on**Nov~mber** 18th was wholly without merit. ,

, , 5. Attorney Fahat paltially breached the agreement**b~l\mrlateraJly** cancelling the arbitration that was ,scheduled for November 2'1, 2013 and/or November 22, 2013. '6. Attorney Ferhat's failure to proceed with arbitration during the week or' November 18th, 'despite a clear agreement by all' parties to .do so, unnecessarlly delayed the**proce~dlngs** In ,this case, created additional legal Page 9 of 11 

### U/OI 'J**S~IO'oN·** 447aCirculated 02/06/2015 03:23 PM

work, and created a.dditiona I expense to the**p'19In~iff?·~nd..tb.~jr.(:Ql.JnsJ':).I,** 

### ..i:lJ/_.oL

.......
. " .... ,...._ .............__ ....._ .... -_.....•.........•..._ ................................................**~.-~**.......- ... -'''' ......._ ................._... ...' 

## . which amounted to dilatory and obdurate conduct on the part of Attorney Ferhat. 7.
.-An award' of cOllnsel fees is proper as a $t;1nction when**th~F6** is a

. . specific fIndIng

..of dilatory,obdura'te,**~r** vexatious conduct by a parti.cipant to Irtigi;lti.on

.. 

### Yeager v. Kavlc, 765 A;2d 812,.815. (Pa. Super. 2000}i 42·Pa

..C.S

. 

### . § 

### 25.03 (7). 8.

. The number of hours spent by Atton')eys Miller and 'Bergstein onwork occasion'ed by the actions or Attorney Ferhat w·as reasonable

..

. Furthermore, their hourly rate is reasonable! 91ven their ·experie'n.ce of**mor~** than thirty

## years. . ·.9.
. "An awt;1rd of counsel fees is .Intended. to reimburse .an :innocen·t·

. litigant For

### e~penses made necesst;1ry by the' conduct of an oppOnent." A;n. Mut

..· 

### Llal? Ins. Co. v. Zion & 

### KleIn, 

### P.A., 489**A~2d** 

### 259, 262 (Pa. Super. 

### 1985)'
. 10

.. Plaintiffs and**t~ejr** counsel are.entitred to an award of thirty four' thousand six hundred,' 

### Forty' six. dollars and forty cents ($34,64.6.40) as' 'a sanction agalnst Attorney Ferhat, ,This sum is

## compris\3~ ofthe

## Plali1tiffs'airf~j'eJ . hotel, 'rent'al cart 8rl'd fuel' expenses;. counsel's 'subpoena Fe.es, ·video· sel'vice

### fee~/. JAMS fee,·.and FedEx feei and Attorneys MJlIer and BergsteIn's time from November 19,2013 through January'2, 2014, 

### i1. An award. of counsel fees for preparation of future ,proceedings

.would be improperly spec:ulative:
Page 10 of 11' 

### tl/ll 'd**S~IO** 'ON 448aCirculated 02/06/2015 03:23 PM



## · __.

_._. ___. __.__ . . __ .__ _. ___ . _ ... :_ ..**J?_~.** 

## __**P~Y!:D**e.t1t.oLtoE!_**?~()y'~.~.lITI1** .. 

### \N**iJL.Q~!jt** 

### pl!3.**c;;~**

### _PI.a.ioJLj'fs

__aI}

### 9._thE!.ir

.__,.__ ..___ .. _ .. _

.._ counsel in the -same financial position that they would have been in jf Attorney Ferhat had proceeded with the arbitration on November 

### 21, 20:t3 and/or November 

### 22, 2013 as the partIes had agreed, 13, ',Whfill1 "parties agree to arbitration in 

### a clear and**unmistak~bJe ~**  .' , manner, then 

## every ni:1?sonable effort will be made to favor sucn agreements," Emm,aus /1ufl. Auth v ..£Itz" 204A,2d 

### 926 (Pa,i'964),

-, 14, There' cQntinues to exist-'a, bfndln'g agreement to ar.bl,trate the, disputE! between these part',es, i.e. the' contingent

### agree~ent ,to arbitrate the 

### matter within 

### slx'ty (60) d'aYS,of Noverriber' 

### 18, 201:3, 15.', It is

_ reasonable and'**appropf'i~te'** for this case to proceed', to arbitration 

## at,**thl~** time, as coritemp,lated

## ~nd'agreed by'the pa'rties, the terms of. " such'

### ~grqement**b~ing** those that were set.forth ,on the' record on, November 

## 18,' 2013 and November 20j 2013. 

### WHEREFORt:,1 we enter the fo(lowlng;



## ....

Page 

### 1l.-of 11

449aCirculated 02/06/2015 03:23 PM



## .............**}N.I'::1~**

## ..**¢.Qt}.~I**

## ..**9.f.f.QMM9.N.PI,~A§.PfNQ.RIHAMEIQN**...CQUNIY

..................... ""'."" """

.. ' COMMONWEALTH OF PENNSYLVANIA CIVIl." DIVISION MARY**FRANC~S** SILBERMAN'and ROBERT M. SIl.BERMAN,**Plaintfff~~** 

## v. VITO LqGUIDICE, M;D. 

## and.**ORTHOPAED~C** ASSOCIATES OF ,HE 'GREATER l.EHIGH VALLEy( 

### " Defeo**d~'lnts. Cw48-CV~2009-9456** 

ORDER OF COURT ""';" ;AND N Ow, this 22nd day 'of January 

### 20,14, upon'cons! deration of " Plairitiffs' ,Motlqn to :Assess COllnsel Fees, Costs, and

### sanctio~s, andfb!fowlng ,a



### . . . 

## . , .' ,: " . hearing, it is 'herepy ORDERED that counsel for Defendants, Daniel J.**~erhati** l;:sq",shall pay, to, plaintiffs' counsel**th~** sum. of thIrty fourthOLlsand siX**~'yndred** .forty 

### sIx dollars and forty cents ($34,646:40) as a sanctIon for his obdurate and

. ,dilatory conduct, as set forth In the foregOIng Opinion. SaId 

### sum shall be pai'd • . 4..**~** wi,thin sixty,(60) days of 

### the date of tl;is Order. Pi;ll!ure to make timely payment 

# or. sa'me may result In the impositIon of further sanctiqns.
" , 

### It, (s furtller ORDERED
.. that this matte'r shall proceed to bl,nding arbitration within thJrty (30)' d,ays of 

### the date of this Order, or the earliest date thereafter upon which, Jerry Rosco.e, Esq. i.s avaIlable to**arbitr~te,** BY THE COURT:



# l)'
PAULA A. ROSCIOLI, J,


### [lifl 'd**~SlO** 

### 'oN 450aCirculated 02/06/2015 03:23 PM

IN THE COURT OF COMMON PLEAS OF NORTHAMPTON COUNTY COMMONWEALTH OF PENNSYLVANIA

_ ... ___ .._ ...


### ."_
.. _.__.__......._._. ..-'-'--'"
. ..-" CIVIlDIVI"Sl"ON--
..... ....H_...••_.__.- ....•---. MARY 

### FRANCES SILBERMAN 

### and 

### ROBERT M. SILBERMAN, 

### C-48-CV-2009-94S6 Plaintiffs, 

## v. VITO 

### LOGUIDICE, M.D. and 

### ORTHOPEDIC ASSOCIATES OF THE 

### GREATER LEHIGH VAllEY, Defendants. STATEMENT PURSUANT TO 

### PENNSYLVANIA

RULE OF APPELLATE PROCEQVBs 

### 12AS(id :r

-**~"J** 

### -'. ( ;'"**~:'.~.::.** (": ". ( r :.:...**~** 

### :

## .**~**

. t'n**.;~**

;tJt f.:;1 ..... 

### , r,;"'r**-~** ( ,


### 'lJ

AND NOW, this 4th day of June 2014, we hereby Issue the forrowlng statement pursuant to Pennsylvania Rule of Appellate Procedure 

### 1925(a): The relevant factual and procedural history of this case ;s succinctly set forth in our oplnlon of January 22, 2014, the concornltant Order from whIch the instant appeal arIses. Accordingly, we rely on that hIstory In our discussion below. On or about March 21, 2014, Defendant Orthopedic Associates ofthe Greater LehIgh Valley, P.A. and aggrieved parties Attorney Daniel 

### J. Ferhat and White and Williams LLP (Appellants) filed a Notice of Appeal to the Superior Court of Pennsylvania from our Order of Court dated January 22, 2014, wherein we imposed sanctions upon Attorney Ferhat for his dilatory and obdurate conduct in connection wlth an agreement to refer this matter to binding arbitration pursuant to 42 Pa.C.S. § 7362. Said appeal was tImely insofar as judgment was not entered in thIs case until March 19, 2014. See,**~** Miller v, Jackson) 445 A.2d 160 (Pa. Super. 1982).



### 583aCirculated 02/06/2015 03:23 PM



### Appellants also filed appropriate security in accordance with Pa.R.A.P. 1731(a) on

...._-_ ........................._ ............. 

### --Marc/i-21; 

### ---Z014;1-Thtr-Uhdersighedtfiere-after--fiiecfan-or(ie-;;-on-

# -A-prii 7, 2014, pursuant to Pa.R.A.P. 1925(b), directing Appellants to file and serve upon the Court 

### a concise statement of 

### the errors complained of on appeal. APpeflants timely filed such 

### a statement, on April 

### 28, 2014. In said statement, Appellants Identify ten assIgnments 

### of error with respect to our Order of January 22, 2014. 

### We address these 

### below: A. This Court did not 

### err in

_ imposing sanctions upon Attorney Ferhat for his dilatory and obdurate conduct in refusing to proceed to the scheduJed arbitration on the basis of the parties' failure to have discussed certain terms prior to referring the matterfor arbitration. 

### In the first sIx 

### assignments of error raIsed in their statement, APpellants contend 

### that this Court erred In 

### imposing sanctions against Attorney 

### FerMat because a 

### variety of terms were absent from the 

### parties' agreement on 

### November 

### 18, 2013 to refer the matter 

### to arbitration. More specjficaJly, APpellants contend that sanctions should not have been awarded against Attorney Ferhat because "opposing counsel would not 

### agree to sign a generar release 

### as a condItion 'of the arbitration agreement/' because "opposing counsel would not agree to the satisfaction of liens as 

### a condition of the arbitration agreement," and because "confidentiality had not been addressed or agreed upon 

### by the parties. II 

### (Statement, 

### 11111, 3, 4). Appellants further contend In general that we 

### erred In imposing sanctions where there was not an 

### "agreement as to all 

### material terms of

1 Appellants also filed a motion for reconsideration of our JanuDry 22, 2014 

### Order on March 21, 2014 which was properly before us 

### pursuant to Pa.R.A.P. 1701{b)(3). That motIon was 

### denied on April 7, 2014. 

### Page 

### 2 of 

### 12

584aCirculated 02/06/2015 03:23 PM



### the contract," (Statement,**~6).** 

### These dalms of 

### error are factually incorrect, and

. .thelr premlselegally+nslgnificant;

................ ... _._...... - _. - - _. --- - .. _ .." .- ....... , •........•.........." ._-_.... As 

### discussed in our January 

### 22, 2014 opinIon, 

### the parties entered Into an oral agreement on the record on November 

### 18, 2013 to refer this matter to binding arbitration, wIth 

### a h!gh/low agreement. (N.T. 

### 11/18/13,**pp.2~5).** 

### AI! parties agreed to the essential terms of 

### the agreement to arbltrate( whfch Included the fact that they were agreeing to arbltrate; the hjgh/low dollar figures; the names of the MO 

### potential arbitrators, the one with the earliest availabilfty being that who would be selectedi and 

### that the arbitration was to take place 

### that 

### week If either arbitrator was avalJable, with 

### a 60 day contingent time flmlt 

### set. (N.T. 

### 11/18/13, pp.2-S.) ThIs agreement was 

### reached after a 

### number of hours of negotiation between counsel and in conference with the Court; 

### no other terms were discussed prior to placing the agreement 

### on the record. (N.T. 

### 1/10/14/ p.37). Following the Court's recltation of this agreement on the 

### record and both counsel's and 

### the parties' acknowledgement of theIr agreement 

### with semel Attorney Farhat 

### stated, "[Y]ou've 

### correctly summarIzed what the materfal agreement is./I 

### (N,T. 

### 11/18/13, p.7). Thereafter, Attorney Ferhat 

### attempted to 

### negotiate addItional terms to which Plaintiffs and theIr counsel were not agreeable. (N,T. 

### 11/18/13,**pp.S~10).** 

### When this attempt 

### was rebuffed, the proceedings concluded with Attorney Ferhat's agreement to proceed with the arbitratIon as 

### discussed, and his statement that there was nothIng further that he wIshed 

### to address with respect to 

### the agreement. 

### (N.T. 11/18/13, p.l0).
Page 3 of 12**"'~'".'''''** ....... _.,,'" --

585aCirculated 02/06/2015 03:23 PM

YetI in spite of this clear agreement to arbitrate In accordance with the terms

------- -------setforth--

## on the -

## -Fee-onton-- NoVe-moe-f-"18;--;20-

# fj-;-and--deaF-staten\el1t--that--the--- material terms thereof were set forth on the record, Attorney Ferhat later attempted to renegotiate the parties' agreementr under the guise of a claim that the parties had not reached an agreement because numerous Issues had not been addressed, as well as a daim that he had not agreed to delay damages being a recoverable element of damages. In an effort to salvage the arbitration agreement and assist the parties and counsel, the Court held a telephone conference on the record on November 20[ 

### 2013. During that conference , Attorney Ferhat claimed that numerous "material" elements had been omItted from the partIes' November 18, 

### 2013 agreement, resultIng In the parties' failure to have a meeting of the minds that would constitute
an enforceable agreement. He even went so far as to say, "Never dId 

## r Intend to make any type of an agreement," a statement that was clearly beHed by the record. (N.T. 

### 11/20/13, p.8). This statement was further belled by Ferhat's own conduct In contacting Mr. Roscoe durIng the afternoon of November 

### 18, 2013, inquiring as to how he would like to handle motions 

### In limine wIth respect to the arbitration that
was to take place that week. (N.T. 

### 1/10/14, p.41.; P!.'s Ex. 6, 

### 1/10/14). During the November 

### 20, 2013 conversation, a number of Issues were discussed, including the Signing 

### by Plaintiffs of a general release, an agreement for the satisfactIon of liens, and an agreement for confidentiality. Attorney Todd Miller, counsel for Plaintiffs/ easily agreed upon all of these points on behalf of his clIents during this conference. (N.T. 

### 11/20/2013, pp.8, 

### 10, 16-17). AccordIngly, we find Page 4 of 12



### 586aCirculated 02/06/2015 03:23 PM

Appellant's claims in their statement that "opposing counsel would not agree" to be

........_,--. ,," .. - .," ... "." ............•.•.., ..... - ...__ .•............. " - ........ .**specIOiJ$~--Appe!la-hts'-C:6nteriffo-n--that:-** Pla-jntiffs' counsel would not agree 

### to these terms is even directly contradicted within their own statement of errors, in 

### which they state that delay damages 

### "was the only remaining issue that had not been agreed upon. /J (Statement,**~8).** Moreover, the Court conduded that the attempt by Appellants to suggest that there were outstanding issues was a ruse to justify their failure to proceed with the arbltratJon, and 

### an attempt 

### to re-negotiate the previously agreed-upon issue 

### of delay damages. Moreover, the failure of the partIes to include these Issues in thelr dlscLlssions or agreement on November 

### 18, 2013 did not render 

### the agreement unenforceable. "If the parties have agreed on the essentIal terms, the contract is enforceable even [if] It is an informal memorandum requiring future approval or negotiation of incidental terms./I Yel/ow Run Coal Co. v.**A!ma~Elly-Yv** Mines l Ltd" 426 A.2d 

### 1152, 1155 (Pa. Super. 

### 1981). "[TJhe fact that additIonal provisIons would enhance the position of both parties Is not controllIng. What is necessary is that 

### the partIes agree to all 

### the essential terms and intend the [agreement) to be binding upon 

### them." Field v, Golden TrIangle Broad, Inc,t 305 A.2d 6891 

### 694 (Pa. 1973). What is required to form 

### an enforceable agreement 

### Is 

### that "the parties agreed to all the essential terms and Intended the contract to be binding upon them." Bredt v, BredtJ 

### 326 A.2d 446} 

### 449 (Pa. Super. 

### 1974). Such was the circumstance in this case on November 

### 18 1 2013, in spIte of Attorney Ferhatts claim to the contrary.
Page 

### 5 of 12

587aCirculated 02/06/2015 03:23 PM



### Black's Law Dictionary defines an \\essential term" as a \\contractual provision**·that"must-be-"lncJudedfor"a-"contract"t'o-exist~"""BJfiCWs Law"15Ja:loriii;Y"iSCJg"C8th**  

### ed. 

### 2004). The essential terms of the agreement at issue were those set 

### forth on the record on November 

### 18, 2013, and do not include the Issues 

### raIsed here by Attorney Ferhat. He has cited no authority to support hIs premIse that 

### the inclusion of a general release ls necessary fn order to form 

### a binding agreement to refer a matter for arbitration pursuant to 

### 42 Pa.C.S. § 

### 7362, or that 

### Its exclusIon from 

### such
an agreement would render the agreement unenforceable. (Statement, 

### 1/2). LIkewise, our own research 

### has uncovered no 

### such authority. Attorney Ferhat's subjectIve feeling wIth respect to the Importance of the addItional terms he wished to include In the parties' agreement, and his regret of his oversight In neglecting to discuss them in conference on November 

### 18, 2013 notwithstanding, the absence of those additIonal terms from the November 

### 18, 2013 agreement did not render It 

### a nullity. Furthermore, the absence of a written arbitratIon agreement did not entitle Attorney Ferhat to cancel the arbitration. As there was an enforceable agreement to proceed to arbitration on November 

### 21 and/or 

### 22, 2013/ Attorney Ferhat's cancellation of that scheduled arbitration amounted 

### to obdurate and vexatious conduct, which warranted the sanctions we 

### fmposed. His 

### conduct in the days foJlowing November 

### 18, 2013, up to and induding his cancellation of the arbitration, cannot 

### in 

### any way be consIdered "good faith efforts conSistent with the faw to negotIate all materiar terms to an arbitration contract and 

### to reduce that agreement to a written document" when the partIes had dearly entered into a binding oral


### Page 6 of 

### 12

588aCirculated 02/06/2015 03:23 PM

agreement and his conduct in attempting to renegotIate that agreement ultimately

........ -_.._- .._ ...- -ended-with his-**breach-thereof.{StatEfmerit~- ·~-5):--···--··**  

### .. .....•.•....•........... __ .............. .........__......_".......... .. 

### B. This Court did not 

### err in concluding that Attorney 

### Farhat had 

### engaged in dilatory and obdurate conduct resulting a breach of the parties' agreement, thus making the imposition of sanctions appropriate. In thejr seventh and eIght assignments of**error~** Appellants contend that this Court erred in Imposing sanctions agaInst Attorney ferhat because, at the tIme the sanctions were Imposed, the 

### 60 day time period 

### that the parties had agreed to as 

### a contingent time frame 

### In which to conduct the arbitration had not yet expIred, and "in an ongoIng effort to resolve the dIspute amicably, [Attorney Ferhat] agreed to arbitrate the case 

### with the posslbility of delay damages, which was 

### the only remaining issue that had not been agreed upon." (Statement 

### 1118). 

### It appears that Appellants misapprehend the nature of the sanctions imposed. We 

### are mrndful that the 

### 60 day contingent time period had not yet expired, and in fact required the parties to proceed to arbltration under the terms of their November 

### 18, 2013 and November 

### 20{ 2013 agreements wIthin thirty days of our entry of the**appealed~from** Order on this basis. The sanctions we imposed agaJnst Attorney Ferhat were not damages for breach of contract. Rather, they were! as their name suggests! a penalty for his dilatory and obdurate conduct In unnecessarHy delaying the proceedings, creating addltlona! legal work, and creatIng addltlonal expense to Plaintiffs and their counsel. 

### The fact that Attorney ferhat may have extended an olive branch to Plaintiffs' counsel in an attempt to resolve the matter - only after the motion for sanctIons was fHed
- does not obviate the fact
Page 

### 7 of 12

589aCirculated 02/06/2015 03:23 PM



### that he engaged In sanctJonable behavior in the days following November 18, 2013.

...................- ..•.- ...._ ....._

... ••• p ............__ ... _ ••• - ..._--.-, ." .. _."
............. - .....................



### -- ··AccordfnglY;-We--bellevelhese-assTg-nm-eiiis-or-error to also be without merlt. 

## c. This Court did not err in imposing sanctions where 

### Attorney Farhat's 

### conduct was 

### the soJe 

### reason why 

### JAMS would not agree 

### to 

### arbitrate the case. In their ninth assignment of error, Appellants assert that this "Court erred In awardIng sanctions against 

### Attorney Ferhat for refusing to particIpate in a private arbItration wIthout a written arbitration agreement where the agreed-upon arbitrator, JAMS, would not agree to arbitrate the case without either an executed arbitration agreement, which the Plaintiff's attorneyS would not Sign, or a court order appointing JAMS as an arbItrator, which the Court did not issue./I (Statement, 'ij9). ThIs asslgnment of error amounts to nothIng more than an attempt to lay blame elsewhere, when Attorney Ferliat's conduct was the reason why the arbitration did not go forward as SCheduled. After the parties agreed on November 18, 2013 to proceed to arbitratIon that week with 

### Mr. Roscoe, they contacted JAMS to make the necessary arrangements. The case manager at JAMS, VeronIca Wightman, corresponded with counsel that same day and indIcated that in order to proceed wIth the arbitratlon, It was necessary for the parties to complete certain paperwork, specifically a Stipulation and a Demand for ArbitratIon. (PI. 's Ex. 7, 1/10/14). Plaintiff's counsel completed said paperwork and returned It to JAMS In short order. Attorney Farhat, in contrast, refused to complete said paperwork. Because Attorney Ferhat refused to do so, Plaintiff's counsel requested that the Court adopt the November 18, 2013 agreement as an order of court, in order to ensure the appointment 

### by JAMS of Mr. ...... ,............... , .. ,.•.

590aCirculated 02/06/2015 03:23 PM

Roscoe as the arbitrator in this matter for that week. (N.T. 11/20/13, p.3). Attorney -Ferhat,--howeverj-objected-to-same-;--and-aCcb-rdinglylhe-Couitdfdriof-enfer-stJcii"an-----

order. (N.T. 11/20/13, p.4). Thus, It was left to Attorney Ferhat to execute the necessary paperwork in order for JAMS to appoInt Mr. Roscoe. This could have been easily accomplished by 

### him sIgnIng the JAMS Stipulation. 

### (PI.'s Ex. 

### 7, 1/10/14.) While Ms. Wightman of JAMS dId IndIcate that "JAMS must have a document sIgned by the parties agreeing to have JAMS administer the arbitration, and In this case Jerry Roscoe serve as the arbitrator/' she did 

### not indicate that such a "document" had to be a written arbitration agreement as contemplated by Attorney Ferhat. (PI's Ex. 

### 12, 1/10/14). To 

### the contrary, 

### the Stipulation provided by JAMS 

### is on its face such a document, wherein 

### It states: 

### "It is stIpulated and agreed 

### by aJl the Parties to submit 

### all disputes, claIms or controversIes to neutral binding arbitration at JAMS, pursuant to JAMS Arbitration Administrative PoliCies and [

...] 

### PartIes hereby agree that [Jerry P. Roscoe, Esq.] shall serve as arbitrator In this matter[.]" (PI.'s 

### Ex. 71 1/10/14). Accordingly, due to 

### his failure to 

### sign the Stipulation, Attorney Ferhat is the only individual to blame for JAMS's inability to appoint the arbitrator in November 2013. ThiS allegation of error 1St 

### as those before It, without merit. D. At 

### no time did 

### this Court conclude that delay damages are awardable In 

### a private 

### arbitration. In their final aSSignment of error, Appellants contend that we "erred In awardIng sanctions where the judge mistakenly concludes that delay damages are awardable in 

### a private arbltratlon. 1t (Statement, 

### 1110). This assignment of error Is premised upon a mistake of fact, as the Court never made such a conclusion. To Page 

### 9 of 12

59laCirculated 02/06/2015 03:23 PM

the contrary, the Court facilitated a discussion on November 18, 2013 in which ·-Attorney- Miller-for-the-**····Ptajhtiffs-"i'n~:ide--jrdea-r-** 

### -thaf

# -fFiey;-··woLir(j-/ic£-agree to

arbitration in the event 

### that they could 

### not seek deJay damages, in an amount such that 

### the total combined 

### award would not exceed the**agreed~upon** hIgh 

### dollar figure. The Court attempted to facilitate 

### such an agreement. The Court stated on that date: "That's an element of damages that you can argue are appropriate or not appropriate. And 

### let that 

### be an issue 

### for the arbItrator." (N.T. 

### 11/18/13, p.8). following 

### which, the falfowrng discussion took place: The Court: "[WJhat he's saying Is If delay damages brings 

### It up to [the high number,] we're entitled to delay damages. 

### If the verdict Is 

### [the high number] and there's a request for delay, [the high number] Is the cap." Mr. Ferhat: 

### It's what are - Mr. Miller: This 

### Is the high whatever damages we prove or don't prove. Thfs is the low whether we win or lose. Mr, FerMat: Whatever the arbitrator says, whatever that number 

### is, that's what you agree to? Mr. Miller; No, because you don't 

### ask for delay damages until there's a verdict, and that's the award of 

### the arbitrator. It 

### can't go hIgher than [the hIgh number]. If we lose, it can't go lower than [the low number], What is so dIfficult about that? The Court: Let's not do that. Come on. If the award Is [the low number], and then there's a request for delay damages made, that would be within the purview of the arbitrator to award delay damages provided it's within the bounds of Page 10 of 

### 12

592aCirculated 02/06/2015 03:23 PM

the hIgh and the low. If the award came back as [the hIgh number], then,

.......-Bbviously,,·youwon'tbe-able··to
. 

### collecrany··ej**elaY···difin-i:i"~fesbeci:l"use··yol/veal**

# readY···- hit the high. And, of course, there's always 

### the option of 

### a complete defense verdict. However that stUl would mean because it's a binding high-low that the 

### plaIntiff receIves 

### [the low numberJ. Mr. Ferhat: Okay. The Court: Okay? 

### Mr. Ferhat; Yes. The 

### Court: Anything else? Mr. Ferhat: That's all, your Honor. N.T. 11/18/13, pp.9*10. A review of this record clearly demonstrates that the parties reached an agreement on the issue 

### of delay damages, and agreed that 

### they
were a recoverable element 

### of damages. 

### While delay damages are clearly not recoverable pursuant to 

### Pa.R.C.P., 238 

### In
an arbitration such 

### as that at 

### issue here, that did not preclude 

### the partles from entering lnto an arbItratIon agreement in which such damages were recoverable. 

### The partIes were 

### free to contract 

### as they saw fit, and in 

### fact they dId make 

### such an agreement. The only conclusion reached by the 

### Court with respect to delay damages was that the exclusion of them was not a part of the agreement that counsel had reached in their negotiations. Furthermore, insofar as Attorney Ferhat expressly agreed 

### on November 18/ 2013 that delay damages 

### were available as 

### a potential element of damages, the Court's conclusion wIth respect to same is of no
Page 11 of 12



### 593aCirculated 02/06/2015 03:23 PM



### moment. 

### (N.T. 11/18/13, pp.9-10). Accordingly, we believe this assignment of

........................ ······error·to·aJso·be·wlth·outmerit:··

...._ ...... _.


### BY THE COURT: 

# f ctu Ia,. 

# At !{ 

# kJr.tJf PAULA A. ROSCIOl...I, 

### J.



### Page 12 of 12

594a