DPM v. Connecticut Foot Specialists, P.C. (2010)

MEMORANDUM OF DECISION ON ELLIOT POLLACK'S (DPM) MOTION TO CONFIRM AND/OR CLARIFY ARBITRATION AWARD DATED NOVEMBER 23, 2009 AND THE APPLICATION TO VACATE ARBITRATION AWARD BY CONNECTICUT FOOT SPECIALISTS, P.C. DATED NOVEMBER 20, 2009

This is an appeal from an Arbitration Award dated October 28, 2009 by a sole Arbitrator, Attorney Peter Janus (hereinafter also “Janus”).   The Arbitration Award was in favor of Elliot Pollack, DPM (hereinafter also “Pollack”) described hereafter against Connecticut Foot Specialists, P.C. (hereinafter also “CFS”).  CFS filed an application to vacate the Arbitration Award and Pollack filed an application to confirm and/or clarify the Arbitration Award.   The parties filed initial briefs on April 8, 2010 and reply briefs on April 15, 2010.   A hearing was held before this Court on April 22, 2010.

The decision of Janus was that Pollack was terminated from CFS in violation of the Employment Agreement between the parties.

The Award in pertinent part is shown as Exhibit A attached hereto and made a part hereof.

CFS seeks to vacate the Award under the authority of C.G.S. § 52-418(a)(3) because Janus (also known as the “Arbitrator”) “excluded relevant evidence” and under the authority of C.G.S. § 52-418(a)(4) in that “the Arbitrator exceeded his powers or so imperfectly executed them that a mutual, final and definite Award upon the subject matters submitted was not made.”   In contrast, Pollack has moved to confirm the Award and/or clarify the same.

The Arbitrator denied the motion to modify and/or clarify.   The parties appeared before this Court on April 22, 2010 at which point CFS focused its claim that under C.G.S. § 52-418(a)(4) “the Arbitrator exceeded his powers or so imperfectly executed them that a mutual, final and definite award upon the subject matter submitted was not made.”  (Emphasis added.)   Following the hearing of April 22, 2010 this Court remanded to the Arbitrator his Award to clarify any ambiguity in said award.   This was done under the authority for remanding found in C.G.S. § 52-419(b).  This Court's decision in remanding the Award to the Arbitrator is dated May 5, 2010.   In pertinent part this Court stated as follows:  “However, the following language is ambiguous and needs clarification “and less what Pollack actually earned or could have earned during the remainder of the term of the Agreement through the exercise of reasonable or due diligence.”   This Court went on to say:  “This can lead to a dispute as to what is reasonable or due diligence and could potentially lead to further litigation.   If further litigation is possible, then there may not be a complete and definite Award.   The Arbitrator should determine with more specificity what the exercise of reasonable or due diligence means or some other way that it should be phrased.   The Court finds this phraseology in the Award to be ambiguous and in need of clarification.”

The Arbitrator, Peter A. Janus, responded with a “CLARIFIED AWARD” dated June 2, 2010 which is attached hereto as Exhibit B.

This was followed by an order of this Court dated July 7, 2010 attached hereto as Exhibit C which in effect stated that the Court believes the clarification to be sufficiently specific and that the Court intends to keep jurisdiction of this case in case of disagreement as to whether the plaintiff has expended his best efforts.   This would be until the contract between the parties reaches its ordinary termination of July 1, 2012.   The Court invited the parties to be present at a hearing if they wish to do so, and CFS sought a hearing before this Court which was held on July 30, 2010.   Following argument the Court gave the parties two weeks to attempt to resolve the dispute.   They were not successful.

STANDARD OF REVIEW:

In deciding whether an Arbitrator has exceeded his power, we need only examine the submission and the Award to determine whether the Award conforms to the submission.  Alderman & Alderman v. Pollack, 100 Conn.App. 80, 89 (2007).

The second issue to be determined whether a submission is unrestricted, we look at the authority of the Arbitrator.  “The authority of an Arbitrator to adjudicate the controversy is limited only if the agreement contains express language restricting the breadth of issues, reserving explicit rights, or conditioning the Award on court review.   In the absence of any such qualifications, an agreement is unrestricted ․ in the present case, the agreement does not limit or condition the Arbitrators' authority in a manner that would make this a restricted submission.   Thus, we conclude that the submission is unrestricted and our review, therefore, is limited.”   Alderman & Alderman v. Pollack, supra, Id. 85.

“․ When the submission is unrestricted, the Arbitrator is empowered to decide factual and legal questions.   The submission tells the Arbitrator what he or she is obligated to decide.”   See Harty v. Cantor Fitzgerald, 275 Conn. 72, 80 (2005).  “Judicial review of arbitral decisions is narrowly confirmed ․ When the parties agree to arbitration and establish the authority of the arbitrator through the terms of their submission, the extent of our judicial review of the Award is delineated by the scope of the parties' agreement ․ When the scope of the submission is unrestricted, the resulting Award is not subject to de novo review even for errors of law so long as the Award conforms to the submission ․ Because we favor arbitration as a means of settling private disputes, we undertake judicial review of arbitration awards in a manner designed to minimize interference with an efficient and economical system of alternative dispute resolution ․”

“Where the submission does not otherwise does not otherwise state, the Arbitrators are empowered to decide factual and legal questions and an award cannot be vacated on the grounds that ․ the interpretation of the agreement by the Arbitrators was erroneous.   Courts will not review the evidence nor, where the submission is unrestricted, will they review the Arbitrators' decision of the legal questions involved ․ In other words, [u]nder an unrestricted submission, the Arbitrators' decision is considered final and binding;  thus the courts will not review the evidence considered by the Arbitrators nor will they review the Award for errors of law or fact ․” (Emphasis added.)  Id. p. 80.

ISSUES AND FINDINGS:

1. Was the Submission Unrestricted?

The short answer is Yes.

2. Did the Award Conform to the Submission?

The short answer is Yes.

3. Did the Arbitrator Exceed his Powers or so Imperfectly Execute them, that a Mutual, Final and Definite Award Upon the Subject Matter Submitted was not Made?

The short answer is No.¹

In his clarification dated June 2, 2010, the Arbitrator is sufficiently specific as to what reasonable or due diligence is or is not.   See Exhibit B. There should be no misunderstanding as to the Arbitrator's Award now that clarification has been achieved.   It is as specific as the Arbitrator could make it under all of the circumstances.   The Court will retain jurisdiction of this matter in the event there is a claim that Pollack did not use reasonable or due diligence.

CONCLUSION:

Accordingly, the motion to confirm the Arbitration Award is granted, and the motion to vacate the Arbitration is denied.

Rittenband, JTR

EXHIBIT A

AWARD

The Arbitrator finds in favor of the Claimant, Elliot S. Pollack, D.P.M., that he was terminated in violation of the Employment Agreement.

As a remedy the Arbitrator awards the following:

1. The Respondent, Connecticut Foot Specialists, P.C., shall reimburse the Claimant his projected compensation under the Employment Agreement for the balance of the term of the Employment Agreement in the gross amount of Five-hundred-five-thousand and three-hundred-fifteen dollars ($505,315), less applicable taxes and any unemployment compensation benefits awarded, and less what Pollack actually earned or could have earned during the remainder of the term of the Agreement through the exercise of reasonable or due diligence.   This amount shall be payable in the same frequency that he was paid when actually working for CFS, except that the Respondent shall make a lump sum payment, less applicable taxes, interim earnings, and any unemployment compensation benefits received, upon issuance of this Award to cover back pay compensation for the period from December 1, 2008 to the date of this Award.

2. In the alternative, at the Respondent's option, it shall reimburse the Claimant his projected compensation under the Employment Agreement for the balance of the term of the Employment Agreement in the present value gross amount of Four-hundred-eighty-eight thousand and three-hundred-forty-four dollars ($488,344), less applicable taxes, interim earnings and any unemployment compensation benefits received, payable in one lump sum upon issuance of this Award.

EXHIBIT B

CLARIFIED AWARD

The Arbitrator hereby clarifies paragraph 1 of the Award dated October 28, 2009 as follows:

1. The Respondent, Connecticut Foot Specialists, P.C., shall reimburse the Claimant his projected compensation under the Employment Agreement for the balance of the term of the Employment Agreement in the gross amount of Five-hundred-five-thousand and three-hundred-fifteen dollars ($505,315), less applicable taxes and any unemployment compensation benefits awarded, and less what Pollack actually earned or could have earned during the remainder of the term of the Agreement through the exercise of reasonable or due diligence.   Reasonable or due diligence shall consist of a reasonable job search by Pollack for employment comparable to his position at CFS, including such efforts by Pollack as applying to public or private employment agencies, seeking assistance from employment recruiters or professional colleagues, and checking and responding to classified advertisements in newspapers or professional journals.   Reasonable or due diligence shall not require Pollack to change professional fields, take an inferior job in terms of compensation or job responsibilities, or relocate to find employment.   This amount shall be payable in the same frequency that he was paid when actually working for CFS, except that the Respondent shall make a lump sum payment, less applicable taxes, interim earnings, and any unemployment compensation benefits received, upon issuance of this Award to cover back pay compensation for the period from December 1, 2008 to the date of this Award.

Peter A. Janus, Arbitrator

FOOTNOTES

FN1. It should be noted that the Court has already ruled on CFS's claim that relevant evidence was excluded.   The Court previously denied Pollack's claim for attorneys fees and prejudgment interest..  FN1. It should be noted that the Court has already ruled on CFS's claim that relevant evidence was excluded.   The Court previously denied Pollack's claim for attorneys fees and prejudgment interest.

Rittenband, Richard M., J.T.R.