Hudik-Ross, Inc. v. 1530 Palisade Ave. Corp.

Decision Date06 November 1974
Docket NumberHUDIK-ROS,INC,H-R
Citation131 N.J.Super. 159,329 A.2d 70
Parties, a corporation of the State of New Jersey, Plaintiff-Respondent, v. 1530 PALISADE AVENUE CORP., a corporation of the State of New Jersey, Defendant-Appellant.PLUMBING, INC., et al., Plaintiffs-Respondents, v. 1530 PALISADE AVENUE CORP., a corporation of the State of New Jersey, Defendant-Appellant., a corporation of the State of New Jersey, Plaintiff-Respondent, v. H. R. SHAPIRO, INC., a corporation of the State of New Jersey, Defendant-Appellant. H. R. SHAPIRO CORPORATION, a corporation of the State of New Jersey, Plaintiff-Appellant, v., a corporation of the State of New Jersey, Defendant-Respondent. Herbert W. DAVIS, et al., Plaintiffs-Respondents, v. AMERICANA ASSOCIATES, Defendant-Appellant Third-Party Plaintiff, v., Third-Party Defendant-Respondent. Bernard BLATT, Plaintiff-Respondent, v. AMERICANA ASSOCIATES, Defendant-Appellant Third-Party Plaintiff, v., Third-Party Defendant-Respondent. Larry MANUS, Plaintiff-Respondent, v. AMERICAN ASSOCIATES, Defendant-Appellant.
CourtNew Jersey Superior Court — Appellate Division

Benjamin P. Michel, Newark, for defendants-appellants H. R. Shapiro, Inc. and 1530 Palisade Ave Corp. (Riker, Danzig, Scherer & Brown, Newark, attorneys).

Theodore W. Geiser, Newark, for plaintiffs-respondents Hudik-Ross, Inc. and H--R Plumbing, Inc. and for defendant-counterclaimant Hudik-Ross, Inc. (McElroy, Connell, Foley & Geiser, Newark, attorneys; Mark L. Fleder, Newark, on the brief).

Daniel M. Hurley, Newark, submitted a statement in lieu of brief for defendant-respondent Hudik-Ross, Inc. (Conway, Reiseman, Michals & Wahl, Newark, attorneys).

Allan Maitlin, Newark, submitted a statement in lieu of brief for plaintiff-appellant H. R. Shapiro, Inc. (Feuerstein, Sachs & Maitlin, Newark, attorneys).

Peter R. Feehan, Hackensack, submitted a statement in lieu of brief for defendant-respondent Hudik-Ross, Inc. (Feehan & Feehan, Hackensack, attorneys).

Daniel A. Fierro, Jr., Fort Lee, submitted a statement in lieu of brief for plaintiffs-respondents Herbert W. Davis and Margaret C. Davis (Fierro, Fierro & Mariniello, Fort Lee, attorneys).

George A. Vaccaro, Paramus, submitted a statement in lieu of brief for defendant-third party plaintiff-appellant Americana Associates (Vaccaro, Osborne & Curran, Paramus, attorneys).

William Goldberg, Hackensack, filed a statement in lieu of brief for plaintiffs-respondents Larry Manus and Bernard Blatt.

Before Judges COLLESTER, LORA and HANDLER.

The opinion of the court was delivered by

LORA, J.A.D.

This controversy arises out of contracts entered into by plaintiffs-respondents, Hudik-Ross, Inc. and its related corporation, H--R Plumbing, Inc. (both hereinafter referred to as Hudik-Ross) and defendants-appellants H. R. Shapiro, Inc. and its related corporation, 1530 Palisade Avenue Corp. (both hereinafter referred to as H. S. Shapiro) for construction work to be performed by plaintiffs. On August 6, 1970 H. R. Shapiro entered into a contract with Hudik-Ross under which Hudik-Ross was to provide all the labor and materials for the plumbing work at the Colony Apartment in Fort Lee, New Jersey for $1,460,000.

On November 20, 1970 defendants and plaintiffs entered into a similar contract for the heating, ventilating and air conditioning (HVAC) at the Colony for $1,300,000. On September 8, 1971 the parties contracted for plaintiffs to provide all the plumbing and HVAC work at the site of Regency Towers in Allentown, Pennsylvania for $707,500.

Defendants allege serious disputes arose between the parties over the work on both projects because plaintiffs failed to do work properly and provided inadequate materials for which defendants delivered numerous 'back-changes' to Hudik-Ross, totaling 'at last count' $1,091,573. Plaintiffs assert all work was completed on two contracts by October 9, 1972 and on the third by May 15, 1973; they deny any disputes arose during performance of the work and state no arbitration was demanded while work was in progress.

H. R. Shapiro refused to make the final contract payments and on August 20, 1973 Hudik-Ross instituted three suits against defendants under the three contracts. They claimed $110,500 for the Allentown job, and on the Colony job some $183,393.40 for the HVAC work and.$242,915 for the plumbing work, in all a total of $536,808.40. Defendants answered alleging they refused to pay because of the 'backcharges' in dispute, and by separate affirmative defense set forth their contractual right to go to arbitration.

In October 1973 defendants filed in each of the three separate suits a notice of motion for an order to consolidate the three cases and for an order staying the cases so that the controversies could be submitted to arbitration in accordance with a provision contained in all three contracts. The motion was not granted by the trial judge at that time because a separate written demand for arbitration had not yet been made upon plaintiffs as called for in the arbitration clause. In December 1973 defendants served separate written demands for arbitration on plaintiffs and requested reargument on the motion. On February 6, 1974, following reargument, an order issued staying all three actions pending arbitration, but consolidating only the two actions involving construction at Fort Lee, New Jersey.

Subsequently, on February 20, 1974 a complaint was filed in the name of H. R. Shapiro, Inc. against Hudik-Ross by defendants' insurance carrier under its subrogation rights to recover for water damage that occurred on two occasions because of alleged defective work by Hudik-Ross, who then answered and counterclaimed asserting the three claims made in the original three suits.

Three other suits for damages were filed by tenants in the Fort Lee building against Americana Associates, the management corporation for the apartments, who, in turn, filed third-party complaints against Hudik-Ross alleging they had caused the damage by faulty workmanship.

Hudik-Ross then moved to consolidate all seven cases and to dissolve the order entered in the three original suits on February 6, 1974 to stay and to arbitrate.

On May 31, 1974 an order was entered dissolving the order of February 6, 1974 and consolidating all seven cases. On June 27, 1974 leave to appeal from this order was granted by this court.

The contracts betwene Hudik-Ross and H. R. Shapiro entered into on August 6, 1970 and November 20, 1970 contained the following clause:

Arbitration Article VII. All questions that may arise under this contract and in the performance of the work hereunder shall be submitted to arbitration at the choice of either of the parties hereto. The demand for arbitration shall be filed in writing with the party against whom it is sought. Each of the parties shall, within three days after such demand, name one arbitrator and they shall select a third arbitrator. If any party shall fail to select an arbitrator within three days after the demand for arbitration is made or if a third arbitrator is not selected within ten days after the demand for arbitration, the additional arbitrator or arbitrators shall be chosen by a Justice of the Supreme Court, or by a Justice of a court of equal jurisdiction. The arbitrators shall act with promptness. The Rules of the American Arbitration Association shall govern and the cost of such arbitration shall be borne equally between the Contractor and Subcontractor. The decision of any two shall be binding on all the parties to the dispute. The decision of the arbitrators upon any question subject to arbitration under this contract, shall be a condition precedent to any right of legal action. The award of the arbitrators must be in writing and if in writing shall not be subject to objection, on account of the procedure or form of the award.

The contract for the work in Allentown contained the same clause except that it provided that if the parties did not choose the arbitrators, they would be chosen by the American Arbitration Association.

The initial question for our determination is whether the controversies presently in litigation between Hudik-Ross and H. R. Shapiro are subject to arbitration under the contracts. Hudik-Ross asserts that because the work has been performed and the disputes in question did not arise until long after the work was completed, they cannot be considered as involving questions that 'may arise under this contract and in the performance of the work.' It is their position the arbitration clause was intended to apply only to contract disputes which might arise during the work; that after completion of the work, the parties were to resort to the courts.

While arbitration agreements are to be 'construed according to the usual methods of contract interpretation whereby a mutual, reasonable and meaningful design is sought from the language used by the parties and maximum effect is...

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