The opinion
J-A14020-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
CHERYL SHASTEEN, INDIVIDUALLY : IN THE SUPERIOR COURT OF
AND AS EXECUTRIX, AND PERSONAL : PENNSYLVANIA
REPRESENTATIVE OF THE ESTATE OF :
JAMES WILLIAM SCHWARTZ; :
CAROLYN LIBERTY, INDIVIDUALLY :
AND AS EXECUTRIX AND PERSONAL :
REPRESENTATIVE OF THE ESTATE OF :
MARY LOU SCHWARTZ :
:
Appellants :
:
v. :
:
ABC PHONES OF NORTH CAROLINA, :
INC., D/B/A A WIRELESS KRYSTAL :
LYNN BADILLO, INDIVIDUALLY, :
RODNEY BREEDLOVE, :
INDIVIDUALLY, DANIELLE JAMES, :
INDIVIDUALLY: NYNEX LONG :
DISTANCE COMPANY D/B/A VERIZON :
ENTERPRISE SOLUTIONS; VERIZON :
COMMUNICATIONS, INC.; CELLCO :
PARTNERSHIP D/B/A VERIZON :
WIRELESS :
:
Appellees : No. 685 WDA 2020
Appeal from the Order Dated June 10, 2020
In the Court of Common Pleas of Beaver County
Civil Division at No(s): 10679-2016
BEFORE: MURRAY, J., KING, J., and MUSMANNO, J.
MEMORANDUM BY KING, J.: FILED: OCTOBER 8, 2021
Appellants, Cheryl Shasteen, individually and as executrix and personal
representative of the estate of James William Schwartz, and Carolyn Liberty,
individually and as executrix and personal representative of the Estate of Mary
Lou Schwartz, appeal from the order entered in the Beaver County Court of
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Common Pleas, which denied Appellants’ petition to modify or vacate the
arbitration award entered in favor of Nynex Long Distance Company d/b/a/
Verizon Enterprise Solutions, Verizon Communications, Inc., and Cellco
Partnership d/b/a Verizon Wireless.1 We affirm.
The trial court opinion set forth the relevant facts and procedural history
of this appeal as follows:
[Appellants’] operative fifth amended complaint asserts that
James Schwartz sustained a heart attack on February 20,
2016 while at home. His wife, Mary Lou Schwartz,
attempted to use her cellular phone to call a relative, who
was in training with a local volunteer fire department,
apparently for assistance. She was not able to make the
telephone call during this alleged emergency because her
cell phone had been disconnected because the account had
been compromised.[2]
The complaint goes on to allege that she was deprived of
contact through a telephone for 40 minutes and this delay
allegedly caused the death of James Schwartz and gave rise
to injuries/claims of other plaintiffs. [Appellants] have
asserted numerous claims/counts against the various
defendants.
The case proceeded through protracted litigation between
the time of the filing of the original complaint in May of 2016
through December of 2017. On December 20, 2017, [the
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1 The remaining entities listed in the caption were not parties to the arbitration
proceeding that is the subject of this appeal. Additionally, none of the
remaining parties filed an appellate brief in this case.
2 Specifically, an individual committed theft on February 19, 2016, using Mrs.
Schwartz’s identity and Verizon account information to purchase cellular
phones from a third-party retailer, ABC Phones of North Carolina, Inc. (See
Appellants’ Fifth Amended Complaint, filed 4/12/17, at ¶¶23-31). This
incident resulted in the deactivation of Mrs. Schwartz’s phone from Verizon’s
system at the time of Mr. Schwartz’s medical emergency. (Id. at ¶¶36-37).
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trial court] sustained preliminary objections on the basis of
an arbitration provision in the agreement between the
Verizon [Appellees] and James William and Mary Lou
Schwartz. There are 35 counts contained in the fifth
amended complaint. A number of counts were dismissed by
[the trial court’s] order of December 20, 2017. The claims
by the Estate of James William Schwartz were the claims
that were referred to arbitration by the December 20, 2017
Order. The remaining, pending counts were stayed[3] by
[the trial court’s] December 20, 2017 … and … March 27,
2018 order[s].
The case proceeded to an arbitration hearing before a board
of three arbitrators on June 3, 4, 5, 6 and July 10, 2019.
The arbitration panel issued a final award on September 6,
2019, finding that [Appellants] did not sustain their burden
of proof at the arbitration hearings. [Appellants] timely filed
a petition to modify or vacate the arbitration award on
October 4, 2019, and later, with leave of court, presented
an amended petition to vacate or modify the award on
February 27, 2020. [Appellees] presented a motion to
confirm the arbitration award on December 11, 2019.
(Trial Court Opinion, filed June 11, 2020, at 2-3) (some capitalization
omitted).
By order and opinion filed June 11, 2020, the court denied Appellants’
amended petition to vacate or modify the arbitration award. The court also
confirmed the arbitrators’ award. On July 10, 2020, Appellants timely filed a
notice of appeal. The notice of appeal included a voluntary concise statement
of errors complained of on appeal, pursuant to Pa.R.A.P. 1925(b). On August
26, 2020, Appellants filed a praecipe for the entry of partial judgment in favor
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3 By order entered July 28, 2020, the court continued the stay of the remaining
claims pending this appeal.
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of Appellees.
On November 13, 2020, Appellants filed an application for relief with
this Court requesting a remand for the filing of a supplemental Rule 1925(b)
statement. This Court permitted remand by order entered on December 8,
2020. On December 17, 2020, Appellants filed their supplemental Rule
1925(b) statement.
Appellants now raise ten issues for our review:
Did Arbitrator Porrata-Doria’s and [Appellees’] counsel[’s]
undisclosed conflicts of interest cause bias and prejudice to
[Appellants]?
Did Arbitrator Stuckey’s undisclosed conflicts of interest
cause bias and prejudice to [Appellants]?
Did the arbitration panel ignore the requirements and
elements of causes of action and fail to apply the law?
Did the arbitrators ignore per se violations without
explanation or authority?
Did the arbitrators fail to provide concise written reasons for
the award in accordance with arbitration rules of American
Arbitration Association (“AAA”) Arbitration Rule [43](b)…?
Were [Appellants] prejudiced by the arbitrators’ failure to
impose any sanction for spoliation of evidence, after notice
and during litigation, causing evident partiality?
Were [Appellants] unfairly prejudiced by deprivation of
cross-examination of [Appellees’] representatives with
knowledge of relevant facts?
Did the trial court err in its order by erroneously stating that
questions 3 and 4 of [Appellants] “were not raised before
the court in [Appellants’] petition to vacate or modify the
award” when, in fact, these issues were raised by
[Appellants] in referenced pleadings?
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Did the trial court err in its order by erroneously stating
[Appellants] “never identified the per se violations that the
arbitrators allegedly ignored,” when, in fact, the per se
violations were specifically identified?
Did the trial court err in failing to take judicial notice of a
typo, concerning [AAA] Rule 43(b) (concerning arbitrators’
duty to provide concise statement), when inadvertently
identified as [AAA] Consumer Rule 47(b)?
(Appellants’ Brief at 9-11).
“Pennsylvania has a well-established public policy that favors
arbitration….” MacPherson v. Magee Memorial Hosp. for
Convalescence, 128 A.3d 1209, 1219 (Pa.Super. 2015) (en banc), cert.
denied, ___ U.S. ___, 138 S.Ct. 354, 198 L.Ed.2d 756 (2017) (quoting Pisano
v. Extendicare Homes, Inc., 77 A.3d 651, 661 (Pa.Super. 2013)).
Judicial review of a common law arbitration award is
severely limited as otherwise arbitration would be an
unnecessary stage of litigation, causing only delay and
expense without settling the dispute.
The arbitrators are the final judges of both law and fact, and
an arbitration award is not subject to a reversal for a
mistake of either. Neither we nor the trial court may
retry the issues addressed in arbitration or review the
tribunal’s disposition of the merits of the case. Rather,
we must confine our review to whether the appellant was
deprived of a hearing or whether fraud, misconduct,
corruption or other irregularity tainted the award. The
appellant bears the burden to establish both the underlying
irregularity and the resulting inequity by clear, precise, and
indubitable evidence. In this context, irregularity refers to
the process employed in reaching the result of the
arbitration, not to the result itself.
[T]he right to a fair hearing comprises the right to notice
and the right to an opportunity to be heard.
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U.S. Spaces, Inc. v. Berkshire Hathaway Home Services, Fox & Roach,
165 A.3d 931, 934 (Pa.Super. 2017) (internal citations and quotation marks
omitted) (emphasis added).
“An argument that the arbitrators were prejudiced or partial, or that
they reached an award so unjust that it constitutes constructive fraud, will not
be heeded.” Gwin Engineers, Inc. v. Cricket Club Estates Development
Group, 555 A.2d 1328, 1329 (Pa.Super. 1989) (quoting Mellon v. Travelers
Ins. Co., 406 A.2d 759, 761 (Pa.Super. 1979)). “Similarly, an ‘irregularity’
will not be found simply upon a showing that an incorrect result was reached.”
Id. “[A] trial court order confirming a common law arbitration award will be
reversed only for an abuse of discretion or an error of law.” U.S. Claims,
Inc. v. Dougherty, 914 A.2d 874, 877 (Pa.Super. 2006), appeal denied, 593
Pa. 729, 928 A.2d 1291 (2007) (quoting Prudential Prop. & Cas. Ins. Co.
v. Stein, 683 A.2d 683, 685 (Pa.Super. 1996)).
In their first issue, Appellants contend that Arbitrator Porrata-Doria had
an undisclosed conflict of interest. Specifically, Appellants note that Appellees’
counsel’s law firm represented Arbitrator Porrata-Doria’s employer, Temple
University, while Appellants’ case was active. Appellants assert that Appellees’
counsel’s law firm “failed to disclose at any relevant time that they continued
to represent Temple University, and thereby its tenured Philadelphia
professor,” Arbitrator Porrata-Doria. (Appellants’ Brief at 18). Appellants
maintain that Arbitrator Porrata-Doria’s conflict created a procedural due
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process violation by denying them a fair arbitration hearing. Appellants
conclude that they suffered prejudice due to the conflict of interest, and the
trial court should have vacated the arbitration award on this basis. We
disagree.
In an arbitration proceeding, a party is entitled to a “full and fair”
hearing “conducted by one not involved with a party to the proceeding.”
Abramovich v. Pennsylvania Liquor Control Bd., 490 Pa. 290, 294, 416
A.2d 474, 476 (1980). “[A] showing of a direct relationship between a party
to an arbitration proceeding and a designated arbitrator must be shown, such
as the existence of a prior employer-employee or attorney-client relationship,
before the requisite partiality of that arbitrator is established.” Land v. State
Farm Mut. Ins. Co., 600 A.2d 605, 607 (Pa.Super. 1991). See also
Sheehan v. Nationwide Ins. Co., 779 A.2d 582 (Pa.Super. 2001), appeal
denied, 568 Pa. 619, 792 A.2d 1254 (2001) (explaining insurance policy at
issue called for appointment of “competent” arbitrator to resolve disputes;
mere fact that arbitrator handled matters on behalf of insurer while associate
at firm over twenty-three years ago did not render arbitrator incompetent;
existence of arbitrator’s prior relationship with insurer did not deprive
appellant of full and fair hearing or constitute fraud, misconduct, partiality or
corruption).
Instantly, Appellants’ amended petition to vacate or modify the
arbitration award argued that: 1) Arbitrator Porrata-Doria was a full-time
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employee of Temple University at the time of the arbitration; 2) the
Philadelphia office of Appellees’ counsel’s law firm, Obermayer Rebmann
Maxwell & Hippel LLP, represented Temple University during the same period;4
and 3) the arbitrator and defense counsel violated Appellants’ rights by failing
to disclose this information. (See Amended Petition to Vacate or Modify, filed
2/27/20, at ¶12). The trial court, however, concluded that the relationship
between defense counsel’s firm and the arbitrator was not “direct,” and
Appellants did not present any evidence demonstrating that the arbitrator
knew that this law firm represented his employer. (See Trial Court Opinion
at 5).
Here, we agree with the court’s determination that there is no direct
relationship between the arbitrator and a party to the proceeding. See Land,
supra. Rather, a more attenuated relationship existed through the
arbitrator’s employer and a different office of Appellees’ counsel’s law firm.
Absent more, we will not heed Appellants’ claim that Arbitrator Porrata-Doria
was prejudiced or partial. See Gwin Engineers, Inc., supra. Thus,
Appellants are not entitled to relief on their first claim.
In their second issue, Appellants assert that Arbitrator Stuckey had a
conflict of interest. Appellants rely on the averments included in an
advertisement for a legal textbook authored by Arbitrator Stuckey, which
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4 Appellees’ counsel works at the firm’s Pittsburgh office.
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indicate that he served as the “CEO of Qualcomm, Inc.” (Appellants’ Brief at
20). Appellants insist that “Qualcomm, Inc. has a continuing fiduciary
relationship with [Appellees].” (Id.) Additionally, Appellants note that
Arbitrator Stuckey “used to work for CompuServe, a wholly owned subsidiary
of [Appellees], but failed to disclose that he has a continuing fiduciary
arrangement and ongoing relationship with [Appellees] through
CompuServe….” (Id.) Appellants conclude that they suffered prejudice due
to these conflicts. We disagree.
Instantly, Appellants submitted certain marketing materials for
Arbitrator Stuckey’s textbook, and these materials listed Arbitrator Stuckey as
the “CEO and Board Chairman of Qualcomm, Inc.” (See Amended Petition to
Vacate or Modify at Exhibit E). Nevertheless, Appellees provided the court
with Qualcomm’s relevant filings with the Securities and Exchange
Commission, which revealed that Steve Mollenkopf has been Qualcomm’s CEO
since 2014. (See Brief in Opposition to Appellants’ Petition, filed 12/2/19, at
Exhibit 1). Appellees also explained that the marketing materials for
Arbitrator Stuckey’s textbook appeared to contain a typographical error,
because the arbitrator had actually served as the Board Chairman for a now-
defunct software company called “QuanComm.”5 (Id. at 4). Regarding the
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5 Appellants’ amended petition to vacate or modify the arbitration award
included an article about QuanComm’s business dealings, which referred to
Arbitrator Stuckey as that company’s former CEO. (See Amended Petition to
(Footnote Continued Next Page)
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relationship with CompuServe, Arbitrator Stuckey’s biography stated that he
last worked for CompuServe in 1998. (Id. at Exhibit 2). Appellants’ exhibits,
however, indicated that Verizon did not acquire CompuServe until 2015. (See
Amended Petition to Vacate or Modify at Exhibit H).
The court evaluated this evidence and determined that the “very remote
nature” of any relationship between Arbitrator Stuckey and Appellees did not
satisfy the standard for demonstrating impartiality. (Trial Court Opinion at 9).
On this record, the court did not misapply the law. See Land, supra.
Accordingly, no relief is due on Appellants’ second issue.
In their third and fourth issues, Appellants complain that the arbitration
panel “ignored the precedent presented by [Appellants] during the
arbitration.” (Appellants’ Brief at 21). Appellants maintain that they “go into
great detail regarding the record in [their] Post Arbitration Brief, which [they]
adopt as if plead verbatim herein.”6 (Id. at 21-22). Appellants insist they
____________________________________________
Vacate or Modify at Exhibit G). Likewise, Arbitrator Stuckey’s biography listed
his tenure as Board Chairman for QuanComm. (See Brief in Opposition to
Appellants’ Petition at Exhibit 2).
6 Issues are waived when they are not addressed in conformance with our
rules of appellate procedure. See Moses Taylor Hosp. v. White, 799 A.2d
802, 804 (Pa.Super. 2002), appeal denied, 570 Pa. 687, 808 A.2d 572 (2002).
“When an appellant attempts to incorporate by reference issues addressed
elsewhere and fails to argue them in his brief, the issues are waived.” Id.
See also Commonwealth v. Sexton, 222 A.3d 405, 413 n.3 (Pa.Super.
2019), appeal denied, ___ Pa. ___, 229 A.3d 568 (2020) (reiterating that
reliance on briefs and pleadings already filed in case is not recommended, and
Superior Court is not obliged to root through record and determine what
arguments, if any, party raised below).
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proved that Appellees were negligent, and Appellees also violated the Fair
Credit Reporting Act (“FCRA”)7 and Breach of Personal Information Notification
Act.8 Appellants argue that the arbitrators’ “refusal to apply the law
represents an affront to justice and a perversion of any fairness or impartiality
in this case.” (Id. at 24). Appellants conclude the trial court erred in denying
their petition to vacate or modify the arbitration award where the arbitrators
failed “to apply the elements of the causes of action presented.” (Id. at 22).
In light of the applicable standard of review, we cannot address this claim.
Here, Appellants essentially ask this Court to rehash the issues
addressed at arbitration and review the panel’s disposition of the merits of
their case. The relevant caselaw precludes us from taking such action. See
U.S. Spaces, Inc., supra. Because Appellants’ third and fourth issues do not
establish that fraud, misconduct, corruption or other irregularity tainted the
award, no relief is due. Id.
In their fifth issue, Appellants cite AAA Rule 43(b) stating, “The award
shall provide the concise written reasons for the decision unless the parties all
agree otherwise.” Appellants complain, however, that the arbitrators did not
supply any concise written reasons to explain their decision. Rather, the
arbitrators baldly asserted that Appellants did not meet their burden. Absent
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7 15 U.S.C.A. § 1681, et seq.
8 73 P.S. § 2301, et seq.
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more, Appellants conclude that the arbitrators failed to comply with the
applicable AAA standards, and the trial court should have vacated the
arbitration award on this basis. We disagree.
Instantly, the arbitrators provided the following statement of reasons in
support of their decision:
1. [Appellants] did not meet the burden to establish
vicarious liability of [Appellees] for the conduct of any
third parties, including the authorized reseller, ABC
Phones of North Carolina Inc. (dba “A Wireless”);
2. [Appellants] did not meet the burden to establish liability
on behalf of [Appellees] under any of the stated claims,
including negligence (including gross negligence and per
se negligence), negligent infliction of emotional distress,
fraud (misrepresentation, concealment, and conspiracy),
wrongful death, survival action, or statutory/regulatory
violations (including the FCRA or Pennsylvania Personal
Information Notification Act);
3. Had liability been established, [Appellants] did not
present sufficient evidence of legal damages and did not
establish a basis for punitive damages against
[Appellees];
* * *
(See Amended Petition to Vacate or Modify at Exhibit D).
Here, the court found that the arbitrators’ statement adequately
provided concise reasons for their decision. (See Trial Court Opinion at 10).
The record supports the court’s finding. We emphasize that the arbitrators’
statement provided enough reasoning to enable Appellants to prepare their
petition to modify or vacate the arbitration award, as well as their brief in
support of the petition. These filings specifically attack the reasoning set forth
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in the arbitrators’ statement, expounding on how Appellants established the
elements of the causes of action at issue. Because the arbitrators provided
an adequate written statement of reasons to support their decision, we cannot
say that the court abused its discretion by failing to grant relief on this claim.9
See U.S. Claims, Inc., supra.
In their sixth issue, Appellants claim that Appellees intentionally
destroyed evidence prior to the arbitration hearing. Appellants argue that
they requested the imposition of sanctions against Appellees for spoliation,
but the arbitrators disregarded the request without any explanation.
Appellants posit that the arbitrators’ failure to sanction Appellees for spoliation
“evidences a patent unfairness in this arbitration process.” (Appellants’ Brief
at 25-26). Appellants conclude they did not receive a fair and impartial
hearing on this basis. We disagree.
“‘Spoliation of evidence’ is the non-preservation or significant alteration
of evidence for pending or future litigation.” PTSI, Inc. v. Haley, 71 A.3d
304, 315 (Pa.Super. 2013) (quoting Pyeritz v. Commonwealth, 613 Pa. 80,
88, 32 A.3d 687, 692 (2011)).
Since the early 17th century, courts have admitted evidence
tending to show that a party destroyed evidence relevant to
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9 Moreover, Appellants’ brief fails to cite any relevant authority to support their
claim that the arbitrators’ statement is inadequate. (See Appellants’ Brief at
24-25). On this basis alone, the denial of relief is warranted. See In re
Estate of Whitley, 50 A.3d 203, 209 (Pa.Super. 2012), appeal denied, 620
Pa. 724, 69 A.3d 603 (2013) (reiterating: “This Court will not consider the
merits of an argument which fails to cite relevant case or statutory authority”).
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the dispute being litigated. Such evidence permitted an
inference, the spoliation inference, that the destroyed
evidence would have been unfavorable to the position of the
offending party. ... [T]he evidentiary rationale [for the
spoliation inference] is nothing more than the common
sense observation that a party who has notice that
[evidence] is relevant to litigation and who proceeds to
destroy [evidence] is more likely to have been threatened
by [that evidence] than is a party in the same position who
does not destroy the document.
Rodriguez v. Kravco Simon Co., 111 A.3d 1191, 1196 (Pa.Super. 2015)
(quoting Mount Olivet Tabernacle Church v. Edwin L. Wiegand Div., 781
A.2d 1263, 1269 (Pa.Super. 2001)).
“[T]he spoliation doctrine is broadly applicable to cases where relevant
evidence has been lost or destroyed.” Id. “The duty to retain evidence is
established where a party ‘knows that litigation is pending or likely’ and ‘it is
foreseeable that discarding the evidence would be prejudicial’ to the other
party.” Marshall v. Brown’s IA, LLC, 213 A.3d 263,268 (Pa.Super. 2019),
appeal denied, ___ Pa. ___, 226 A.3d 568 (2020) (quoting Mount Olivet
Tabernacle Church, supra at 1270-71). If spoliation occurred, in
determining the appropriate sanction, the court must weigh:
(1) the degree of fault of the party who altered or destroyed
the evidence; (2) the degree of prejudice suffered by the
opposing party; and (3) whether there is a lesser sanction
that will avoid substantial unfairness to the opposing party
and, where the offending party is seriously at fault, will
serve to deter such conduct by others in the future.
Id. at 316 (quoting Parr v. Ford Motor Co., 109 A.3d 682, 702 (Pa.Super.
2014) (en banc), cert. denied, 577 U.S. 1008, 136 S.Ct. 557, 193 L.Ed.2d 430
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(2015)).
Instantly, the record belies Appellants’ claim that the arbitrators
disregarded Appellants’ request for spoliation sanctions without explanation.
Appellants initially requested spoliation sanctions in a March 2, 2019 letter
from their attorney to Arbitrator Stuckey. (See Amended Petition to Vacate
or Modify at Exhibit N). Thereafter, Arbitrator Stuckey provided multiple
responses to the parties via email. Arbitrator Stuckey stated that the
arbitrators would not address spoliation issues during discovery. (Id.)
Rather, the parties should be prepared to present arguments, evidence, and
defenses related to spoliation at the arbitration hearing and in any subsequent
briefs. (Id.)
The spoliation issue arose during the arbitration hearings when
Appellees presented testimony from Mark Merten, Verizon’s District Manager
for Indirect Distribution. Mr. Merten explained that his job responsibilities
included some oversight of third-party retailers who sold Verizon products.
(See N.T. Arbitration Hearing, 6/5/19, at 493). During the cross-examination
of Mr. Merten, Appellants’ counsel asked the witness if he had reviewed the
“security video” from the day when the identity thief used Mrs. Schwartz’s
account information at the third-party retail location. (Id. at 562). The
questioning then shifted to the investigation into the fraudulent transactions.
(Id. at 566). During this line of questioning, counsel requested to show the
security video to the witness. (Id. at 568). Counsel sought to explore
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whether the retail associate took actions to prevent identity theft, such as
requesting identification from the identity thief. (Id.)
Appellees’ counsel objected, claiming that the arbitrators had already
ruled that counsel could not ask witnesses “to state their own opinions as to
what’s on the video, because the panel will be reviewing the video itself.” (Id.
at 569). A discussion ensued regarding the necessity of the video evidence.
Appellants’ counsel wanted to use the video to dispute the accuracy of certain
assertions made in the third-party retailer’s investigation report. (Id. at 571-
72). After the arbitrators agreed that they would watch the video and treat it
as substantive evidence, Appellants’ counsel added:
One other caveat that I’d like to bring to the attention of the
panel is the fact that this video was not provided until a year
after the litigation had been going. And initially, what was
provided in response to a subpoena … was a different video,
allegedly out of California, that supposedly has nothing to
do with these events. And how that happened, I don’t know.
But this is a completely different video.
(Id. at 573).
Arbitrator Stuckey then broached the topic of spoliation, questioning
whether the parties were addressing the subject “right now.” (Id.) Arbitrator
Stuckey also observed, “I mean, eventually, you got what you needed[.]” (Id.
at 574). At that point, Appellees’ counsel interjected, noting that the third-
party retailer actually “maintained the video.” (Id.) Thereafter, the parties
continued to argue about what questions Appellants’ counsel could ask Mr.
Merten based upon the video.
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Appellants’ counsel then revisited the topic of discovery:
[APPELLANTS’ COUNSEL]: I understand. Also, I need
to address what [Appellees’ counsel] said, that A Wireless
saved the video. Actually, there were six videos.
ARBITRATOR STUCKEY: That’s not what we’re
arguing right now.
[APPELLANTS’ COUNSEL]: I understand, but I wanted
to clarify that because he made that point on the record,
so—
ARBITRATOR STUCKEY: He was responding to you
… suggesting that Verizon produced, in a tardy manner, a
video that was not—that we understand was not under their
control.
[APPELLANTS’ COUNSEL]: Understood.
ARBITRATOR STUCKEY: So I don’t think that’s
relevant to the hearing unless it entails spoliation, which we
opened the door to including spoliation issues in this
hearing. I don’t hear spoliation at all. So let’s move forward
with any additional questions appropriate for this witness.
[APPELLANTS’ COUNSEL]: Okay.
(Id. at 575-76). Appellants’ counsel continued with his cross-examination of
Mr. Marten, and he did not revisit the spoliation issue.
Following the arbitration proceedings, the court reviewed all of the
arbitration hearing transcripts in evaluating Appellants’ spoliation claim. The
court determined that the arbitrators provided Appellants with the opportunity
to present evidence of spoliation, but Appellants failed to do so. (See Trial
Court Opinion at 6). Our review of the record supports the court’s
determination. We emphasize that Appellants’ counsel provided a cursory
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argument that Appellees had attempted to withhold certain video evidence.
Appellees’ counsel immediately countered this assertion with a claim that his
clients did not actually maintain the evidence at issue. Absent some evidence
that Appellees lost or destroyed relevant evidence that was under their
control, the arbitrators properly declined to apply the spoliation doctrine. See
Rodriguez, supra. As such, we cannot say that Appellants were denied a
full and fair hearing on this basis. See U.S. Spaces, Inc., supra.
In their seventh issue, Appellants assert that the arbitrators deprived
them of their right to cross-examine Appellees’ employees who had knowledge
of relevant facts. Appellants acknowledge the trial court’s conclusion that
Appellants did not take “any steps to attempt to secure information on where
these individuals were located.” (Appellants’ Brief at 26) (quoting Trial Court
Opinion at 7). Appellants insist, however, that they issued eight subpoenas
for the witnesses at issue. Appellants claim that two of the witnesses “were
in subpoena range,” but Appellees allegedly threatened to terminate one of
the witnesses if he testified. Appellants conclude that they suffered unfair
prejudice due to their inability to cross-examine these witnesses. This issue
is waived.
Here, Appellants’ one-paragraph argument presenting this issue is
underdeveloped and completely devoid of any citation to relevant authority.
In the absence of a more thorough analysis, we will not develop this issue on
Appellants’ behalf. See In re Estate of Whitley, supra.
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In their eighth, ninth, and tenth issues, Appellants assert that the trial
court incorrectly determined that they failed to preserve their third and fourth
issues for appellate review. Appellants contend that the court further erred
by incorrectly denying Appellants’ request to correct a typographical error in
one of their filings regarding the AAA rule referenced in their fifth issue on
appeal. As we have already analyzed the substance of these arguments, we
need not address these final, tangential claims.10 Accordingly, we affirm.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/8/2021
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10 To the extent Appellants’ brief frames one of these issues an “application
for correction of typo,” we acknowledge that the AAA rule at issue on appeal
is Rule 43(b) relating to the concise written reasons for the arbitrators’ award.
(See Appellants’ Brief at 28-29).
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