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J & T Brothers, LLC v. Mark Pacelli T/A Mcp Construction

July 5, 2012

J & T BROTHERS, LLC, PLAINTIFF-APPELLANT,
v.
MARK PACELLI T/A MCP CONSTRUCTION, DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Docket No. L-1193-11.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued May 23, 2012 -

Before Judges Axelrad and Sapp-Peterson.

Plaintiff, J & T Brothers, LLC, appeals from a September 14, 2011 order of the Law Division denying its motion for correction and modification of the binding arbitration award or, in the alternative, vacation of the arbitration award and remand to the arbitrator. We affirm.

Plaintiff is a subcontractor who entered into an agreement with defendant, MCP Construction, LLP (MCP), a general contactor, to install exterior stucco as part of a renovation of a Days Inn hotel located in Plattsburgh, New York. Defendant, Mark Pacelli, executed the agreement on behalf of MCP. Although plaintiff had completed 99% of the work required under the contract and addenda, he claimed that MCP failed to make timely and full progress payments. He prepared a claim summary, which he submitted to MCP for $58,057.91 for payment. When MCP failed to pay, plaintiff filed a demand for arbitration in accordance with the terms of the contract.

The matter proceeded to arbitration on January 5, 2011. Plaintiff testified and produced as a witness one of his employees, Ioan Vaida. Vaida testified that he "contracted with defendant personally," and he claimed that "[d]efendant used both his individual name, as well as the fictitious trade name 'MCP Construction,' on the executed Contract." In addition, he testified that all of his communications related to plaintiff's subcontracting work were through use of defendant's personal email address.

Pacelli, who was present at the hearing, was permitted to submit a responding statement at that time, over plaintiff's objection, despite having failed to comply with the arbitrator's Management Order directing him to file a pre-hearing statement. Following the conclusion of the hearing, the arbitrator invited both parties to submit post-hearing documents. On February 1, 2011, the arbitrator awarded plaintiff $58,057.91, the full amount sought by plaintiff. In the written decision, the arbitrator stated that the first issue to be resolved was the "true identify of [r]espondent":

Claimant alleges the true [r]espondent is Mark Pacelli individually, trading as MCP Construction. Mr. Pacelli, in his post-hearing submittal, insists that the contract was made between two companies, and that "nowhere is there a personal agreement between the parties[.]" Although [r]espondent alleges "MCP Construction Group, LLC is a legal LLC with an employer identification number, who files taxes appropriately[,]" there is simply no proof in the record of that fact. However, when [c]laimant prepared the agreement, the customer was described as "MCP Construction[.]" Thus, there is a clear ambiguity as to the identity of the real party in interest. Since it is well settled under New Jersey law that ambiguities must be construed against draftsmen, I must conclude that the true respondent is MCP Construction Group, LLC, hereinafter referred to as [r]espondent.

On February 4, 2011, plaintiff's attorney submitted an application to the arbitrator for "Reconsideration of Certain Limited Findings of Fact and Conclusions of Law," asserting that defendant should have been determined to have been personally liable for the amount due. The application was denied without comment. Plaintiff filed a second application for reconsideration on March 17, 2011, and once again, on April 22, 2011, the application was denied, with notice to plaintiff that the arbitrator would "not consider any further requests for modification of the Award rendered in this matter."

On August 1, 2011, plaintiff filed a verified complaint in Superior Court seeking an order from the Law Division modifying the arbitration award or, alternatively, an order vacating the award and remanding to the arbitrator. The court issued an order to show cause the following day, directing defendant to show cause why final judgment should not be rendered for the relief sought. The relevant parts of the order directed that:

(1) it be served on defendant personally or by mail within seven days, in compliance with Rule 4:67-3; (2) defendant file and serve any written response by September 2, 2011; and (3) if defendant failed to file and serve opposition to the order, "the application will be decided on the papers on the return date and relief may be granted by default[.]" Defendant failed to respond.

One or two days prior to the return date, the court notified plaintiff that no appearance was necessary, and on September 14, 2011, the court entered an order dismissing, with prejudice, "[p]laintiff's [m]otion for [c]orrection and [m]odification of the binding [a]rbitration [a]ward," and "[p]laintiff's [m]otion to [v]acate and [r]emand the binding [a]rbitration [a]ward[.]"

Plaintiff filed its notice of appeal on October 28, 2011, and on that same date, the trial court issued an oral decision. In denying plaintiff's motion, the judge found: "The evidence does not weigh heavily on one side versus the other on the issue of whether MCP Construction was a fictitious company; and, therefore, ...


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