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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
HERBERT HENNIGAN IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
PROGRESSIVE CASUALTY INSURANCE
COMPANY
Appellant No. 3570 EDA 2015
Appeal from the Order October 20, 2015
In the Court of Common Pleas of Philadelphia County
Civil Division at No(s): 140305646
BEFORE: PANELLA, J., OLSON, J., and STEVENS, P.J.E.*
MEMORANDUM BY PANELLA, J. FILED AUGUST 05, 2016
Appellant, Progressive Casualty Insurance Company (“Progressive”),
appeals from the order entered in the Court of Common Pleas of
Philadelphia, which denied its petition to open/strike the $25,000 judgment
entered in favor of Herbert Hennigan (“Hennigan”). We affirm.
The relevant factual and procedural history is as follows. Hennigan
initiated this action by filing a complaint seeking underinsured motorist
benefits from Progressive. In the complaint, Hennigan averred that he was
injured in a motor vehicle accident due to the negligence of David
Luchsinger, Sr. Hennigan further alleged that although his claim against
Luchsinger settled for Luchsinger’s liability policy limit of $25,000, that sum
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*
Former Justice specially assigned to the Superior Court.
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was far below the value of his actual damages. Progressive subsequently
filed an answer with new matter, in which it asserted that it was entitled to a
reduction and/or molding of any verdict in order to account for
compensation already received by Hennigan.
This dispute was subject to compulsory arbitration. On December 22,
2014, the arbitrators entered a $25,000 award in favor of Hennigan and
against Progressive. Importantly, the arbitrators had no knowledge of the
$25,000 Luchsinger settlement. Thereafter, Progressive requested that
Hennigan stipulate to reducing the arbitration award from $25,000 to $0, on
the basis that the award was subject to molding and Progressive was
entitled to a third-party settlement credit of $25,000. Hennigan refused to
execute the stipulation. Neither party appealed the arbitrators’ award.
On September 3, 2015, Hennigan filed a “Praecipe to Enter Judgment
on Award of the Arbitrators.” On that same day, the trial court granted
Hennigan’s petition and entered judgment against Progressive for the full
arbitration award amount of $25,000. On September 16, 2015, Progressive
filed a petition to open/strike the judgment, in which it asserted that the
$25,000 arbitration award represented the “gross award” due to Hennigan.
See Petition to Open/Strike Judgment, 9/16/15, at 3. Thus, Progressive
maintained that the arbitration award should have been molded to $0 in
order to account for the $25,000 that Hennigan received from the
Luchsinger settlement. See id. The trial court denied Progressive’s petition,
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as well as its subsequent motion for reconsideration. This timely appeal
followed.
On appeal, Progressive argues that the trial court erred in denying its
petition to open/strike the judgment. Specifically, Progressive asserts that
the arbitration award should have been molded so that Progressive received
credit for the $25,000 that Hennigan received from the Luchsinger
settlement. See Appellant’s Brief, at 10. Progressive alleges that the
arbitration award represented the total damages due to Hennigan, not the
amount due to him in underinsured motorist benefits. See id., at 10-11. On
that basis, Progressive contends that Hennigan should not be permitted to
recover twice for the same injury. See id.
The procedure for taking an appeal from a compulsory arbitration
award is clear. The only recourse for a party challenging a compulsory
arbitration award is to file an appeal for a trial de novo with the Court of
Common Pleas. See 42 Pa.C.S.A. § 7361(d); Lough v. Spring, 556 A.2d
441, 442 (Pa. Super. 1989). The only exception to this procedure is that a
court may mold an award where the record discloses obvious errors in either
the mathematics or language of the award. See Pa.R.C.P. 1307(d). This
rule, however, is aimed only at the correction of patent errors that do not go
to the substance and merits of the award. See Lough, 556 A.2d at 443.
A party challenging a compulsory arbitration award must file an appeal
within 30 days of the date when the award becomes final. See Pa.R.C.P.
1308(a)(1). “[A] compulsory arbitration award becomes final and appealable
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after the arbitrators forward the award to the prothonotary and the award is
entered on the docket pursuant to 42 Pa.C.S.A. § 7361(d).” Stivers
Temporary Personnel, Inc. v. Brown, 789 A.2d 292, 293 (Pa. Super.
2001).
In the instant case, the prothonotary entered the compulsory
arbitration award on the docket on December 23, 2014, after providing
notice to the parties. On that date, the award took the force and effect of a
final judgment. See id. Thus, from that point forward, the only avenue for
Progressive to challenge the award was to appeal to the Court of Common
Pleas for a trial de novo within 30 days. See Pa.R.C.P. 1308(a)(1); Lough,
556 A.2d at 442. Progressive never filed a petition for a trial de novo.
Instead, on September 16, 2015, Progressive filed a petition to open/strike
the judgment.
Clearly, Progressive failed to follow the proper appeal procedure when
it filed a petition to open/strike the judgment, instead of seeking a trial de
novo. For that reason alone, Progressive’s appeal must fail.1 We further note
that the limited exception under Pa.R.C.P. 1307(d) is inapplicable because
Progressive did not ask the court to correct a simple typographical or
mathematical error in the arbitration award. Instead, it petitioned the court
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1
Even if Progressive had instead filed an appeal for a trial de novo, its
petition was untimely, as it was filed well past the 30-day appeal period set
forth in Pa.R.C.P. 1308(a)(1). Consequently, the trial court would not have
had jurisdiction to consider it.
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to reduce the judgment against it to $0. Because such relief involves a
substantive change to the award, it is not the type of relief available under
Pa.R.C.P. 1307.
Based on the foregoing, we conclude that the trial court properly
denied Hennigan’s petition to open/strike the judgment. Accordingly, we
affirm the trial court’s order.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/5/2016
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Hennigan, H. v. Progressive Casualty Ins.
Combined Opinion