Flight Systems does not allege any facts which might lead the Court to believe that Flight Systems did not have adequate notice or time to conduct discovery, that the panel refused to hear evidence, or that Flight Systems was denied a fair hearing. Furthermore, Flight Systems did not bring up any problems with the arbitration panel's conduct at the time of the arbitration hearings, nor did Flight Systems request the arbitrators to postpone proceedings so that Flight Systems could conduct further discovery. Flight Systems does not offer, nor can the Court find, any case law which would allow the Court to overturn an arbitration decision based on the facts presented.
Second, Flight Systems relies on invalid case law in its argument that the award should be vacated based on a new trial analogy. There is Virginia case law, dating back to 1874, that applies the rules governing courts of equity in arbitration litigation. The cases allow the awarding of a new trial based on the ground of new evidence. Adams v. Hubbard, 66 Va. 129 (25 Gratt. 1874). However, Virginia recently repealed Va. Code § 8.01-580, which codified the law on which the early cases had relied.
In its place, Virginia adopted, almost verbatim, the Uniform Arbitration Act. Case law in other states which have adopted the Uniform Arbitration Act have declined to vacate an award based on similar claims of new evidence. See e.g., Wilks v. American Bakeries Co., 563 F. Supp. 560 (D.N.C. 1983); AFSCME Council 65, Local Union No. 667, Aitkin County Courthouse Employees, AFL-CIO v. Aitkin County, supra; Minersville Area School Dist. v. Minersville Area School Service Personnel Ass'n, 518 A.2d 874, 102 Pa. Commw. 409 (1986). In addition, cases decided under the FAA, which is very similar to the Uniform Arbitration Act, have not allowed an arbitration decision to be vacated on a claim of new evidence. See Washington-Baltimore Newspaper Guild v. The Washington Post Co., 442 F.2d at 1236-37.
Flight Systems and PALCO agreed to arbitrate in April 1987. This places their arbitration under the recent Virginia Code. Given the precedent set by other states which adopted the Uniform Arbitration Act prior to Virginia, it may be inferred that Virginia adopts those courts' extreme hesitance to vacate an arbitration agreement on the bases of after-discovered evidence. Therefore, this Court denies Flight Systems' motion to vacate based on the claim of new evidence.
Moreover, since Diehl was employed by Flight Systems and Flight Systems knew or should have known that Diehl worked on the original negotiations with PALCO, it is reasonable to assume that Flight Systems could have contacted Diehl prior to the arbitration hearing. Flight Systems does not claim that the arbitration panel refused to hear from Diehl, or that he was unavailable to Flight Systems prior to the arbitration. This strengthens the Court's determination that Flight Systems' argument is unpersuasive.
Flight Systems also fails to present the Court with any evidence of an "evident" miscalculation or mistake as set forth is Va. Code § 8.01-581.011. This is not a case in which the arbitration award the boundary lines of a property were inadvertently mismarked, a mathematical mistake made, a name misspelled, or some similar circumstance in which the Court could actually "correct" the award. See, e.g., City of Fairbanks Municipality Utilities System v. Lees, supra (error must be manifestly clear in order for a court to modify or correct award); Cyclone Roofing Co. v. LaFave Co., 312 N.C. 224, 321 S.E.2d 872 (1984) (only awards reflecting mathematical errors, errors relating to form, and errors resulting from arbitrators' exceeding their authority may be modified or corrected); Carolina Virginia Fashion Exhibitors Inc. v. Gunter, 41 N.C. App. 407, 255 S.E.2d 414 (N.C. Ct. App. 1979) (legislators meant only to address mistakes such as mathematical errors which would be patently clear to a reviewing court). Thus, the Court concludes that given the circumstances, the arbitration award was not an abuse of discretion, nor does it represent an evident mistake; therefore, Flight Systems' petition must be denied.
Timeliness of Flight Systems' Petition
Notwithstanding the foregoing discussion, one additional matter should be dealt with. Even if Flight Systems had a legally cognizable claim to vacate the arbitration award, Flight Systems' petition could not be granted because Flight Systems did not comply with the applicable time period set forth in Virginia Code $ S 8.01-581.011.
Flight Systems filed its petition to vacate on September 20, 1988, 93 days after the award was issued and mailed. PALCO was not given notice of the motion to vacate until October 13, 1988, three months and 26 days after the arbitration award was mailed. Section 581.011 of the Virginia Arbitration Act states that an application to modify or correct an award must be made "within ninety days after delivery of a copy of the award to the applicant." Va. Code 8.01-581.011 (Cum. Supp. 1988). While the Court was unable to find any case applying Virginia arbitration law which defines "delivery," Rule 45 of the American Arbitration Association defines delivery as occurring upon mailing. Both parties agreed that the arbitration would be in accordance with the rules of the AAA and Virginia law. The award was mailed on June 20, 1988. September 20, 1988, was 92 days after the mailing of the award. Thus, it appears that Flight Systems' petition was late under the contractual agreement to apply Virginia law in correlation with the Rules of the National Arbitration Association.
Since failing to comply with the statutory period for petitioning to vacate constitutes a waiver of one's right to petition to vacate, Flight System's untimeliness is fatal. See, e.g., Bingham County Com'n v. Interstate Electric Co., a Division of the L. E. Myers Co., 105 Idaho 36, 665 P.2d 1046 (1983) (a party must meet the 90-day statutory requirement; failure to comply with the time limit raises an absolute bar to the motion to vacate); Schroud v. Van C. Argiris & Co., 78 Ill. App. 3d 1092, 398 N.E.2d 103, 34 Ill. Dec. 428 (1979) (a court cannot extend the 90-day period in which the complaint for vacation of award must be filed). Therefore, even if Flight Systems had presented valid reasons to vacate the award, the Court properly could not consider its motion since it was untimely.
Resolution of PALCO'S Petition to Confirm
Remaining before the Court is PALCO's petition to confirm the arbitration award. Virginia Code § 8.01-581.09 states that a court "shall confirm an award, unless within the time limits hereinafter imposed grounds are urged for vacating or modifying or correcting the award, in which case the court shall proceed as provided in §§ 8.01-581.010 and 8.10-581.011." Pursuant to both §§ 8.01-581.010 and.011, the Court is required to confirm the award if the application to vacate or modify is denied. Since it has been determined that Flight Systems' petition to vacate or modify was not meritorious or timely, the Court is obliged to confirm the arbitration award. However, since the Court finds no bad faith on Flight Systems' part, PALCO's request for attorney fees and interest on the award is denied.
Accordingly, Flight Systems' petition to vacate is denied and PALCO's petition to confirm is granted, each party to bear its own costs. An appropriate Order accompanies this Memorandum Opinion.
Date: May 24, 1989
ORDER - May 24, 1989, Filed
For the reasons set forth in the accompanying Memorandum Opinion, it hereby is
ORDERED, that Flight Systems' petition to vacate is denied. It hereby further is
ORDERED, that Paul A. Laurence Co.'s petition to confirm is granted, each party to bear its own costs. Consistent therewith, these cases are dismissed.
Date: May 24, 1989