On appeal from the Superior Court of New Jersey,
Bischoff, Milmed and Francis.
This appeal challenges an order dated August 31, 1979 confirming an arbitration award and entering final judgment on behalf of plaintiff.
Defendant Franklin Universal Building Corporation and plaintiff Harmuth Engineering Company entered into a contract for the performance of construction work in Fairfield, New Jersey. Incorporated in the contract was a provision submitting all "disputes, claims or questions under the contract to binding arbitration." The contract provided for the selection of the arbitrators in the following manner:
. . . Within three days after the demand for arbitration, each party shall select one arbitrator and those two arbitrators shall in turn select a third arbitrator within ten days after the demand for arbitration was issued. Parties to arbitration shall meet within fifteen days after the demand for arbitration to settle the dispute.
After the project was completed a dispute arose concerning the amount due Harmuth for employing union labor. Harmuth requested arbitration of the dispute. Franklin agreed and selected an arbitrator. Harmuth selected its arbitrator and by letter dated July 11, 1978 informed Franklin's arbitrator they were ready to select the third arbitrator. The two arbitrators could not agree upon the third panel member and requested the American Arbitration Association to designate an impartial arbitrator. James O'Hara was appointed. Thereafter a conflict of interest developed and the two arbitrators appointed by Franklin and Harmuth withdrew. By letter dated November 13, 1978 counsel for Harmuth suggested that the parties mutually alter their agreement which provided for three arbitrators and utilize the services of one arbitrator, namely, O'Hara, to resolve the dispute. The letter further stated:
If, within five business days of their receipt of this letter, I do not receive notification by either party that they do not wish the arbitration to proceed in this matter, I will assume that they consent to this method of proceeding. . . .
Again, if I do not hear from either you or your clients within five business days of your receipt of this letter . . . I will assume that the arrangements proposed . . . is [ sic ] agreeable to all concerned.
By letter dated November 28, 1978 the American Arbitration Association agreed to assume sole responsibility for arbitrating the dispute. No objections from either party were received and a notice of hearing for February 13, 1979 was mailed on January 16, 1979. On January 24, by letter, counsel for Franklin requested an adjournment and the hearing was postponed to February 20.
By letter of February 9, 1979 Franklin objected to the conduct of the arbitration by a single arbitrator, pointing to the contract provision for three arbitrators. The hearing was adjourned to March 20 and on that date counsel for Franklin appeared,
objected to the hearing proceeding on the basis of procedural jurisdiction, and left. The hearing proceeded, with Harmuth receiving an award of the full amount of its claim plus interest. When Franklin indicated it did not intend to make payment of the award, Harmuth instituted this action seeking enforcement of the award under N.J.S.A. 2A:24-1 et seq. After a hearing the ...