J.A22039/14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
CHARLES DAVIS III, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
:
:
HARTFORD FIRE INSURANCE COMPANY, :
:
: No. 2274 MDA 2013
Appeal from the Order Entered November 25, 2013
In the Court of Common Pleas of Luzerne County
Civil Division No(s).: 14077-2005
BEFORE: PANELLA, SHOGAN, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED SEPTEMBER 30, 2014
Appellant, Charles David, III, takes this counseled appeal from the
order entered in the Luzerne County Court of Common Pleas, denying his
court that it lacked jurisdiction under 42 Pa.C.S. § 5505 to hear the petition,
filed five years after a prior order modified the arbitration award.
Accordingly, we affirm.
accident in question has resulted in court filings to no less than three
l Ct. Op., 1/30/14, at 1. On September
*
Former Justice specially assigned to the Superior Court.
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9, 2005, Appellant, was driving a car in the course of his employment with
accident, and allegedly suffered injuries. The car was owned by Keystone.1
In December of 2005, at the instant trial docket, 14077-2005,
Appellant filed a praecipe for a writ of summons and petition to appoint an
arbitrator. The Honorable Joseph F. Sklarosky, Jr., presided over the instant
matter. In October of 2007, an arbitration panel awarded $2,930,150 to
Appellant. Hartford filed an application to modify the award, arguing there
, and in the
alternative that any policy had UIM limits of $2 million. The arbitration panel
denied the application.
Meanwhile, in March of 2007, Hartford filed a declaratory judgment
action under a different docket, 2822-2007, seeking a declaration that
us that this case is still pending in Luzerne County. Trial Ct. Op. at 2 n.4.
Hartford then filed, under a third docket, 13910-2007, a petition to
vacate or modify the arbitration award. On February 8, 2008, the Honorable
million. Appellant took no action and did not file an appeal.
1
Keystone has filed an amicus curiae brief in this appeal.
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Five years and seven months later, on September 4, 2013, Appellant
filed the ins
the instant docket, #14077. The petition averred the following. In May
2012, Appellant served under the second docket, #2822, a request on
In June 2012, Appellant received declaration pages for the following excess
insurance coverage:
$25 million
CNA $20 million
Traveler $5 million
Id.
possession of documents which showed that these excess and umbrella
would be available benefits in excess of the $2,000,000.00 limit owed by
Id. at ¶ 17. Appellant requested the instant trial court to modify
with 6% interest.
Hartford filed a response, arguing, inter alia: (1) the trial court lacked
(2) the coordinate jurisdiction rule prevented the trial court from modifying
existence of
additional excess insurance policies until discovery in docket #2822; and (4)
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Hartford had no duty to Appellant to determine whether other insurance
companies issued policies to his employer, Keystone.
The trial court held a hearing on November 18, 2013, and denied
2
It reasoned the only relief
the court lacked jurisdiction under Section 5505. Appellant took this timely
appeal.3
For ease of disposition, we first set forth the relevant law and the trial
upon notice to the parties may modify or rescind any order within 30 days
after its entry, notwithstanding the prior termination of any term of court, if
2
While the text of the order stated that it was entered November 25, 2013,
the filing stamp on the order bears the date of November 27th, and a
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11/27/13.
3
On December 23, 2013, the trial court directed Appellant to record
a Pa.R.A.P. 1925(b) statement within twenty-one days. Order, 12/23/13
(emphasis in original). The trial court opinion states that Appellant mailed a
1925(b) statement to the trial judge on or about January 6, 2014, but the
statement was not time-stamped by the Prothonotary and not entered on
the docket. There is no 1925(b) statement in the certified record.
However, unlike other orders filed in this matter, the 1925(b) order
does not bear a handwritten note that copies were mailed, and the
corresponding docket entry likewise does not indicate the date and manner
of service on the parties. Accordingly, we decline to find waiver for
See In re
L.M., 923 A.2d 505, 509-10 (Pa. Super. 2007).
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vides:
(a) General rule. Except as provided in section 1722
(c) (relating to time limitations) or in subsection (b) of this
section, the time limited by this chapter shall not be
extended by order, rule or otherwise.
(b) Fraud. The time limited by this chapter may be
extended to relieve fraud or its equivalent, but there shall
be no extension of time as a matter of indulgence or with
respect to any criminal proceeding.
42 Pa.C.S. § 5504.
This Court has explained:
Pursuant to 42 Pa.C.S.A. § 5505 . . . th
discretion to modify its orders ceases thirty days after the
entry of an order, and thereafter the trial court may
exercise discretion to modify an order only upon a showing
of extrinsic fraud, lack of jurisdiction over the subject
matter, a fatal defect apparent on the face of the record or
-day
period, a trial court may modify an order only to correct a
clerical error or other formal error which is clear on the
face of the record and which does not require an exercise
of discretion.
ISN Bank v. Rajaratnam, 83 A.3d 170, 172-73 (Pa. Super. 2013)
(citations omitted). Pennsylvania Rule of Civil Procedure 1019(b) requires,
Pa.R.C.P. 1019(b).
To establish a prima facie case of fraud, a plaintiff must
show:
(1) a representation; (2) which is material to the
transaction at hand; (3) made falsely, with
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knowledge of its falsity or recklessness as to whether
it is true or false; (4) with the intent of misleading
another into relying on it; (5) justifiable reliance on
the misrepresentation; and (6) the resulting injury
was proximately caused by the reliance.
Kostryckyj v. Pentron Lab. Techs., LLC, 52 A.3d 333, 338 (Pa. Super.
2012) (citation omitted).
In the case sub judice, the trial court reasoned the following. Although
underinsured arbitration award, a review of the pleading, prayer for relief,
February 8, 2008 order. Trial Ct. Op. at 1 n.1, 3. Furthermore, while
er pursuant
absent fraud or its equivalent.[ ]
Id. at 4-5 (emphasis in original).
offer[ed] no averment[s] that set forth sufficient facts to
conclude Hartford made a material misrepresentation to
anyone, including Judge Mundy. [Appellant] simply offers
his opinion in par
possession of documents which showed the excess policies
particular document, or reason why Hartford was or would
have been in possession of the excess policy information,
where the policies at issue were not otherwise
underwritten by Hartford.
Id.
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compelling circumstances Id.
In the instant appeal, Appellant presents one issue for our review:
s
of fraud and that only evidence of fraud could suffice to modify Judge
Id. at 12. Appellant contends the basis for his petition
was not fraud, but instead wa
Id. He then reasons that the trial
court had broad discretion to modify or rescind the prior order under Section
5505. In support, Appellant asserts extraordinary circumstances justified
representation that coverage was limited to $2 million. We find no relief is
due.
of not only th
court did not proceed on a premise that he was alleging fraud; indeed, the
failed to aver fraud. We
that because Appellant failed to aver
fraud or other extraordinary cause under Section 5504, the court could not
extend the thirty-day period set forth in Section Section 5505. See 42
Pa.C.S. §§ 5504, 5505; ISN Bank, 83 A.3d at 172-73. Appellant does not
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deny that he did not aver fraud. Again, he emphasizes on appeal that he did
not.
See
th Hartford.
Finally, where the trial court properly noted that the three additional
other than Hartford
that Appellant petition to modify failed to explain why the existence of other
insurance compani
payment. See Trial Ct. Op. at 3 (emphasis in original).
Appellant has presented no meritorious claim for relief, and we affirm
the order denying his petition on the ground that the court lacked
jurisdiction under Section 5505 to modify a five-year old order issued under
another docket.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/30/2014
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Davis III, C. v. Hartford Fire Ins. Co.
Combined Opinion