J-A31031-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

KATHY CUNLIFFE                                    IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                      v.

LISA CREEDON

                             Appellant                 No. 1169 EDA 2016


                 Appeal from the Order Entered March 2, 2016
       in the Court of Common Pleas of Philadelphia County Civil Division
                        at No(s): 00186, April Term, 2005

BEFORE: BENDER, P.J.E., MOULTON , J., and FITZGERALD, J.*

MEMORANDUM BY FITZGERALD, J.:                     FILED DECEMBER 29, 2016

        Appellant, Lisa Creedon, appeals from the order entered in the

Philadelphia County Court of Common Pleas denying her petition to strike

judgment. Appellant contends the trial court erred in holding that the only

remedy from an arbitration award was an appeal de novo. We affirm.

        We adopt the trial court’s recitation of the facts and procedural history

of this case.

              On April 4, 2005 [Appellee, Kathy] Cunliffe instituted
           suit against Defendant[] Daimler Chrysler Corporation and
           [Appellant], for injuries arising from a motor vehicle
           accident occurring on April 5, 2003.       An arbitration
           hearing[1] was scheduled for November 23, 2005. At the

*
    Former Justice specially assigned to the Superior Court.
1
 Appellee’s complaint sought damages “in an amount not in excess of Fifty
Thousand ($50,000.00) Dollars, exclusive of interests and costs.” R.R. at
19a. Thus, this was a compulsory arbitration pursuant to 42 Pa.C.S. §
7361(a). The statute provides as follows:
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        arbitration hearing, [Appellant] was not present, and the
        panel entered an award “in favor of Defendant Daimlier
        Chrysler Corporation by stipulation and against [Appellant]
        in the amount of $35,000.00.”[2]

          On October 11, 2012, [Appellee] filed a petition to
        Conform and Mold Arbitration Award. On November 7,
        2012, the [c]ourt entered an Order molding, conforming,

        (a) General rule.─Except as provided in subsection (b),
        when prescribed by general rule or rule of court such civil
        matters or issues therein as shall be specified by rule shall
        first be submitted to and heard by a board of three
        members of the bar of the court.

        (b) Limitations.─No matter shall be referred under
        subsection (a):

              (1) which involves title to real property; or

              (2) where the amount in controversy, exclusive of
              interest and costs, exceeds $50,000.

42 Pa.C.S. § 7361(a), (b). For the parties’ convenience, we refer to the
reproduced record where applicable.
2
  In the instant case, the award of the arbitrators and notice pursuant to
Pa.R.C.P. 1307 was entered on the docket on November 23, 2005. See R.R.
at 4a. In Stivers Temp. Pers., Inc. v. Brown, 789 A.2d 292 (Pa. Super.
2001), this Court noted:

        Upon entry of the compulsory arbitration award on the
        docket and appropriate notice, the award took the force
        and effect of a final judgment. This procedure differs
        substantially from statutory or common law arbitration,
        which provides that a party must petition the trial court to
        confirm an award thirty days or more following the date of
        the award. See 42 Pa.C.S.A. §§ 7313, 7342(b). As this
        case involves a compulsory arbitration award, neither
        party was required to praecipe the prothonotary to enter
        judgment on the award. See 42 Pa.C.S.A. § 7361(d).

Id. at 294.



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         and correcting the Arbitration Award to read: “We find in
         favor of [Appellee] and against [Appellant] in the amount
         of $35,000.00. We find in favor of Defendant Daimler
         Chrysler by stipulation on [Appellee’s] cause of action.”
         On August 27, 2015, [Appellee] filed a Praecipe for
         Judgment directing the Prothonotary to enter judgment
         and assess damages on the Arbitration Award as
         “$35,000.00 with interest from November 23, 2005.”

            On January 18, 2016, [Appellant] filed a Petition to
         Strike Judgment, to which [Appellee] filed an opposition on
         February 8, 2016. On March 3, 2016, this [c]ourt denied
         the Petition. On March 14, 2016, [Appellant] filed a Motion
         for Reconsideration, which this [c]ourt denied on March 16,
         2016. On April 1, 2016, [Appellant] filed a Notice of
         Appeal to the Superior Court.[3]

Trial Ct. Op., 6/13/16, at 1-2.

      Appellant raises the following issue for our review: “Whether the trial

court erred when it refused to consider the numerous errors demonstrated in

the record of the case resulting in a void or voidable judgment when it held

that the only remedy from an arbitration award was an appeal de novo?”

Appellant’s Brief at 4.

      As a prefatory matter, we consider whether the trial court had

jurisdiction to consider Appellant’s petition to strike. In Stivers, this court

addressed the issue of “whether the trial court had jurisdiction to review [the

a]ppellant's petition to vacate the arbitration award filed 58 days after the

prothonotary entered the arbitration award on the docket and sent the

required notice.” Stivers, 789 A.2d at 295. This Court opined:

3
  Appellant was not ordered to file a Pa.R.A.P. 1925(b) statement of errors
complained of on appeal.



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          In compulsory arbitration, once an award is issued, it is
       sent to the prothonotary for entry on the docket and
       publication to the parties. Pa.R.C.P. 1306; 1307; 1308(a);
       42 Pa.C.S.A. § 7361(d) (stating “In the absence of appeal
       the judgment entered on the award of the arbitrators shall
       be enforced as any other judgment of the court.”). Here,
       the arbitrators forwarded the award to the prothonotary on
       November 20, 2000, for entry on the docket, and the
       prothonotary notified the parties of the award on the same
       day. See Pa R.C.P. 1307.

          Once entered, a compulsory arbitration award may only
       be challenged by a timely appeal to the Court of Common
       Pleas for a trial de novo. Pa.R.C.P. 1308(a); 42 Pa.C.S.A.
       § 7361(d). Pennsylvania Rule of Civil Procedure 1308(a)
       provides in pertinent part:

          (a) An appeal from an [arbitration] award shall be
          taken by

          (1) filing a notice of appeal in the form provided by
          Rule 1313 with the prothonotary of the court in
          which the action is pending not later than thirty days
          after the day on which the prothonotary makes the
          notation on the docket that notice of the entry of the
          arbitration award has been provided as required by
          rule 1307(a)(3)

       Pa.R.C.P. 1308(a). This Court has stated:

          The procedure for taking an appeal from a
          compulsory arbitration award is clear. A party to a
          compulsory arbitration may take an appeal from the
          award by seeking a trial de novo in the Court of
          Common Pleas. 42 Pa.[C.S.] § 7361(d). Rule of
          Civil Procedure 1308(a) provides that an appeal
          from an arbitration award must be taken “not
          later than thirty days after the entry of the
          award on the docket. . . .” The Explanatory Note
          to Pa.R.C.P. 1307 states:

              These Rules contemplate that the board will
              disperse after rendering the award, not to
              reconvene and not to hear any motions or


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              applications to amend modify or change the
              award. If any party is dissatisfied with any
              aspect of the award, the sole remedy is an
              appeal for a trial de novo. (emphasis added)

            The rules provide only one exception to this
            procedure. Subsection (d) of Rule 1307 provides
            that the court of common pleas may mold an award
            where the record discloses obvious errors in either
            the mathematics or language of the award. The
            court’s power to mold is specifically limited to
            correction of such patent errors and is the same
            as the power of a trial court to mold a jury verdict.
            Pa.R.C.P. 1307(d).    The rule is aimed at the
            corrections of formal errors that do not go to
            the substance and merits of the award.

        Lough [v. Spring, 556 A.2d 441, 442-43 (Pa. Super.
        1989)],     (footnote omitted) (emphasis   added).
        Additionally,

            Timeliness of an appeal, whether it is an appeal to
            an appellate court or a de novo appeal in common
            pleas court, is a jurisdictional question.  Where a
            statute fixes the time within which an appeal may be
            taken, the time may not be extended as a matter of
            indulgence or grace.

        Lee v. Guerin, 735 A.2d 1280, 1281 (Pa. Super. 1999) [
        ].

                                 *    *    *

        [The a]ppellant did not file an appeal for a trial de novo
        within the thirty-day appeal period prescribed by Pa.R.C.P.
        1308(a).       See Lee, supra; Pa.R.C.P. 1308(a).
        Consequently, the trial court lacked jurisdiction, ab initio,
        to consider Appellant’s petition to vacate the compulsory
        arbitration award.

Stivers, 789 A.2d at 295–97 (some emphases added and some citations

omitted).



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      In the case sub judice, the trial court opined: “In the instant matter,

regardless of the potential merits of [Appellant’s] Petition to Strike

Judgment, the sole procedure for challenging an Arbitration Award is by an

appeal for a trial de novo and, as such, this [c]ourt properly denied the

Petition to Strike Judgment.” Trial Ct. Op. at 2-3. We agree no relief is due.

      On November 23, 2005, the arbitrators’ award was entered on the

docket, and notice was given pursuant to Pa.R.C.P. 1307. See id. at 294.

Appellant did not perfect an appeal for a trial de novo pursuant to Pa.R.C.P.

1308(a); see also 42 Pa.C.S. § 7361(d). Appellant’s filing of the petition to

strike the judgment and underlying award of the arbitrators on January 18,

2016, did not constitute compliance with the procedures applicable to the

filing of an appeal from an arbitration award.     See 42 Pa.C.S. § 7361(d);

Pa.R.C.P. 1308(a); Stivers, 789 A.2d at 295-97. Therefore, the trial court

lacked jurisdiction to consider the petition to strike the award.     See id.

Accordingly, we affirm the order of the trial court.4

      Order affirmed.




4
 We note that we can affirm the trial court for any reason. In re Estate of
Cochran, 738 A.2d 1029, 1032 (Pa . Super. 1999).



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/29/2016




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