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On July 1, 2019 arbitration agreements in Pennsylvania will be governed by the Revised Uniform Arbitration Act (RUAA). RUAA revises the Uniform Arbitration Act which has been in force in Pennsylvania since 1980. What should non-litigators know about RUAA?
RUAA applies on a mandatory basis to all agreements to arbitrate signed after July 1, 2019. In addition, the parties to an arbitration agreement executed before July 1, 2019 can agree that RUAA’s provisions govern.
2. Common Law Arbitration
Since 1980, Pennsylvania has had in effect two options for arbitration. Parties could specify that their arbitration was governed by the terms of RUAA’s predecessor, the Uniform Arbitration Act. If they did not do so, governance of the arbitration defaulted to common law arbitration rules. Both the Uniform Arbitration Act and common law arbitration (despite its name) were codified in Pennsylvania’s Judicial Code. RUAA abolishes common law arbitration in Pennsylvania.
3. Impartiality of Arbitrators
RUAA includes disclosure requirements not previously found in the law. Under RUAA an arbitrator must make a reasonable inquiry to determine the existence of any facts which a reasonable person would consider likely to affect an arbitrator’s impartiality. These include a personal or financial interest in the outcome of the case, past or present relationships with the parties, their attorneys or representatives, witnesses or other appointed arbitrators. Disclosure of any such facts must be made. Failure to do so may constitute grounds to vacate any award. To preserve the right to claim partiality after disclosure, timely objection must be made and if the arbitration agreement or rules of the arbitration organization provide rules to challenge the appointment, such rules must be followed.
4. Immunity of Arbitrators
Arbitrators are afforded immunity under RUAA to the same extent that a judge, sitting in a civil action would be immune.
RUAA provides that under certain circumstances a court may order consolidation of multiple pending arbitration matters, unless the agreement prohibits such consolidation.
6. Interim Remedies
Before an arbitrator is appointed, RUAA permits the Court to enter a provisional or interim order to protect the effectiveness of the arbitration proceeding. Once appointed, an arbitrator can modify the Court’s provisional order or enter a provisional order his own. Such orders include temporary restraining orders as well as the issuance of liens and preliminary injunctions.
Before RUAA, there was no guidance on the conduct of discovery other than the power granted to the arbitrator to issue subpoenas and to take testimony of witnesses who could not attend the hearing by deposition. Typically, limited discovery was conducted by agreement of the parties. RUAA makes it clear that the arbitrator can order discovery as appropriate in the circumstances and sanction a party who fails to comply with discovery requests.
8. Is a Hearing Required?
No. The arbitrator can determine that the case does not require an evidentiary hearing and if so, make a decision without holding one.
9. Attorney’s Fees, Costs and Punitive Damages
Attorney’s fees and punitive damages can be awarded to the extent that these remedies are permitted under the law in a civil action. RUAA carries forward the power granted to arbitrators under prior law to apportion the cost of the proceeding, including the fees of the arbitrators between the parties.
10. Modification and Waiver
RUAA permits waiver or modification of its provisions except for eleven provisions which cannot be waived or modified at all, and nine provisions which can be waived or modified but only after a controversy subject to arbitration arises. Examples of the former are the RUAA provisions regarding its applicability and regarding immunity of the arbitrators. Examples of the latter are the rights to seek provisional relief and the arbitrator’s disclosure provisions.
RUAA is a welcome update to Pennsylvania law. Its provisions will bring some order to a forum that, in some circumstances, was the Wild West.
Divorced or separated parents often have difficulty agreeing on issues related to their children. School choice is an important issue in custody cases that is often in dispute. Disagreement as to school choice can involve public school versus public school, public school versus private school, public school versus parochial school, or private school versus parochial school. It is imperative that parents know and understand the law in Pennsylvania with respect to custody and school-related litigation. Ideally, parents should make every effort to work together to co-parent in the best interest of their children and reach an agreement as to which school their children will attend. Doing so will minimize stress and conflict for all involved, most importantly children. Not surprisingly, such compromise can be very challenging for divorced or separated parents.
The Pennsylvania child custody statute defines physical custody as “[t]he actual physical possession and control of a child” and legal custody as “[t]he right to make major decisions on behalf of the child, including, but not limited to, medical, religious and educational decisions.” See 23 Pa.C.S. Section 5322(a).
The Pennsylvania Code addresses admission to public schools and provides “[w]hen the parents reside in different school districts due to separation, divorce or other reason, the child may attend school in the district of residence of the parent with whom the child lives for a majority of the time, unless a court order or court approved custody agreement specifies otherwise. If the parents have joint custody and time is evenly divided, the parents may choose which of the two school districts the child will enroll for the school year.” See 22 Pa. Code Section 11.11(a)(1).
Pennsylvania courts generally award custody on a 50/50 basis. As such, the typical custodial arrangement is shared physical custody and shared legal custody. Parents who exercise shared legal custody of their children have the right to make education-related decisions on their behalf. Education-related decisions include school choice, or where the children will attend school. Since most parents exercise shared legal custody of their children, they must agree on school choice.
Pennsylvania law permits a school-age child to attend the public school of the district in which the child resides. If one parent exercises primary physical custody then the children may attend the school district in which the primary custodial parent resides. If both parents exercise shared physical custody then the children may attend the school district in which either custodial parent resides. Conflict often arises as the law does not grant exclusive decision-making authority to either parent in this situation.
When there is a dispute among parents regarding school choice, and they are unable to reach an agreement, one of the parents must seek court intervention. The court will make a determination as to where the children should attend school by considering the evidence presented by both parents in light of the overall goal of serving the best interest of the children. Relevant evidence includes, but is not limited to, school ranking (curriculum, standardized test scores, and crime rates), school location (distance between the school and each parents’ residence), child’s educational needs and academic performance (report cards and progress reports), child’s participation in sports and other extra-curricular activities, child’s preference (depending on the age and maturity of the child), and school tuition (if applicable).
Divorced or separated parents who know that there is a dispute as to school choice and that court intervention is likely necessary, should consult with an attorney who specializes in custody litigation. It is critical to avoid delay when dealing with the issue of school choice in custody cases.