Marsala v. Valve Corp. of America

• Decision Date: 08 January 1969
• Court: Connecticut Supreme Court
• Parties: Clarence T. MARSALA v. VALVE CORPORATION OF AMERICA.

Page 469

254 A.2d 469

157 Conn. 362

Clarence T. MARSALA v. VALVE CORPORATION OF AMERICA.

Supreme Court of Connecticut.

Jan. 8, 1969.

Clifford R. Oviatt, Jr., Stamford, with whom, on the brief, was John A. Sabanosh, Bridgeport, for appellant (defendant).

Lawrence J. Merly, Bridgeport, for appellee (plaintiff).

Before KING, C.J., and ALCORN, HOUSE, THIM and RYAN, JJ.

KING, Chief Justice.

This was a proceeding brought by the plaintiff, under § 52-418 of the General Statutes, which provides in material part, that the Superior Court 'shall make an order vacating * * * (an arbitration) award upon the application of any party to the arbitration: * * * (d) if the arbitrators have exceeded their powers or so imperfectly executed them that a mutual, final and definite award upon the subject matter submitted was not made'.

The plaintiff was employed by the defendant as its personnel manager under a contract dated May 17, 1965, which provided, inter alia, that the contract of employment could not be terminated by either party except for 'just cause'; that, if a dispute arose as to what constituted 'just cause', it should be determined by a threemember board of arbitration; that one member of such board should be chosen by each party; and that the two thus chosen should themselves choose the third arbitrator.

On December 9, 1966, the plaintiff was discharged on the ground that he had been disloyal. On December 12, he requested arbitration of the dispute as to the propriety of his discharge. The plaintiff chose John V. Turk, Jr., as his arbitrator, the defendant chose Philip H. Smith, an attorney, and the two chose, as the third arbitrator, Peter Seitz. The selection of the three arbitrators was completed on January 30, 1967.

None of the arbitrators was ever sworn, as required by General Statutes § 52-414, although at some point in the proceedings the parties attempted orally to waive that statutory requirement.

On February 22, the arbitrators scheduled the arbitration hearing for May 10. The plaintiff, on February 21, had made application to the Superior Court, apparently pursuant to General Statutes § 52-412, for the taking of a deposition of Philip Sagarin, an officer of the defendant, and on March 20, the plaintiff filed in the Superior Court a notice that Sagarin's deposition would be taken on April 10. On March 22, the defendant asked the plaintiff for alternate dates for the taking of the Sagarin deposition, and it was rescheduled for April 20, at which time it was taken.

The arbitration hearing was held on the scheduled date, May 10, both parties participating and represented by counsel, and the hearing was completed on that day. At the close of the hearing, in response to an inquiry of arbitrator Seitz as to the method of summation, the plaintiff's attorney stated that he would like to have briefs exchanged, and it was agreed that briefs should be exchanged not later than June 13, which was done, and copies were mailed to the arbitrators on that day.

On August 8, the plaintiff's attorney received by mail the award, which consisted of a majority award in favor of the defendant and signed by arbitrators Seitz and Smith and a minority award, in favor of the plaintiff, signed by arbitrator Turk.

On August 29, the plaintiff filed the aforesaid application to vacate the award. The relevant specific grounds were (a) that the award was not rendered within the statutory period of 'sixty days from the date on which * * * (the) arbitrators * * * were empowered to act', as required by General Statutes § 52-416, and (b) that the arbitrators, prior to hearing testimony and taking evidence, were not sworn as required by General Statutes, § 52-414 and there was no written waiver of this requirement. The court, after hearing, entered judgment vacating the award on the ground that it had not been rendered within the statutory time limit, and, in effect, it held that the date on which the arbitrators 'were empowered to act' within in the meaning of § 52-416 was not later than May 10, 1967, which was the date on which the arbitration hearing was held and the evidence concluded. From the judgment vacating the award the defendant appealed.

Arbitration agreements are to be favorably construed by the courts. Gaer Bros., Inc. v. Mott, 144 Conn. 303, 307, 130 A.2d 804, 65 A.L.R.2d 749, and cases cited. But a person can be compelled to arbitrate a dispute only if, to the extent that, and in the manner in which, he has agreed so to do. Visselli v. American Fidelity Co., 155 Conn. 622, 624, 237 A.2d 561; Frager v. Pennsylvania General Ins. Co., 155 Conn. 270, 274, 231 A.2d 531, and cases cited. While the agreement for the arbitration of a dispute may contain special provisions governing the conduct of the arbitration proceedings, in the absence of such special provisions the arbitration proceedings are governed by the applicable provisions of our general arbitration statutes. ¹ McCaffrey v. United Aircraft Corporation, 147 Conn. 139, 141, 157 A.2d 920. These statutes consist of §§ 52-408 through 52-424 and are contained in what is now chapter 909 of the General Statutes. Neither party makes any claim that the provisions of chapter 909 are not applicable or that the agreement to arbitrate contained any special provisions relevant or material to the present controversy. Chapter 909 was first enacted as chapter 65 of the Public Acts of 1929 and, with some changes, was taken from the Uniform Arbitration Act first promulgated in 1925. Since that time a new Uniform Arbitration Act has been promulgated, differing considerably from the original act and reflecting changes and improvements suggested by experience in arbitration proceedings under the original Uniform Act. 9 Uniform Laws Annotated (1957) 76.

It is provided in General Statutes § 52-414 that, '(b)efore hearing any testimony or examining other evidence in the cause', the arbitrators 'shall be sworn to hear and examine the matter in controversy faithfully and fairly and to make a just award according to the best of their understanding, unless the oath is waived in writing by the parties to the arbitration agreement'. Here, the arbitrators were not sworn, and there was an oral, but not a written, waiver of that requirement. The statute expressly requires that the waiver be in writing. Since for the reasons hereinafter pointed out that the court was not in error vacating the award because it had not been rendered within the sixty-day time limit, it is unnecessary to determine the efficacy of the parties' attempted oral waiver of the requirement of the oath.

We turn now to the phrase 'empowered to act' since it is clear that the sixty-day period ran from that time, whatever that time was. ² In the first place, it is important to note that, although what is now General Statutes § 52-416 was taken from § 8 of the original Uniform Arbitration Act, the Uniform Act provided that the sixty-day period should run from the time the arbitrators were appointed, while in the Connecticut statute the phrase 'empowered to act' was deliberately substituted. This makes it clear that 'empowered to act' does not refer to the time when the arbitrators are appointed as seems to be suggested at one point in the defendant's brief.

Although the arbitrators may, prior to taking the oath, perform some ministerial acts such as assigning a time for a hearing or granting a postponement, under General Statutes § 52-414, as hereinabefore noted, '(b) efore hearing any testimony or examining other evidence in the cause, the arbitrators * * * shall be sworn.'

Under the quoted provisions of § 52-414, it is clear that chapter 909,...