Kemether v. Aetna Life & Casualty Co.

JOHNSON, Judge, dissenting.

Because I find that this appeal should be quashed, I must respectfully dissent.

A dispute arose between Patricia E. and Fred N. Kemether and Aetna Life & Casualty Company over an insurance claim filed by the Kemethers. Pursuant to the parties’ insurance contract, the dispute was submitted to arbitration under the Uniform Arbitration Act, 42 Pa.C.S. § 7301 et seq., and the arbitrators found in favor of Aetna. Subsequently, the Kemethers filed a petition to vacate or modify the arbitrators’ award. The trial court denied the petition, and judgment was entered. However, the trial court did not issue an order confirming the arbitration award. The Kemethers now appeal, arguing that the trial court erred in denying their petition to vacate or modify the award.

*474In pertinent part, the provision of the Uniform Arbitration Act governing appeals states:

§ 7320. Appeals from court orders
(а) General rule. — An appeal may be taken from:
(1) A court order denying an application to compel arbitration ' under section' 7304....
(2) A court order granting an application to stay arbitration made under section 7304(b).
(3) A court order confirming or denying confirmation of an award.
(4) A court order modifying or correcting an award..
(5) A court order vacating an award without directing a rehearing.
(б) A final judgment or decree of a court entered pursuant to the provisions of this subchapter.

42 Pa.C.S. § 7320.

In the present case, although the trial court denied the Kemethers’ petition to vacate the award, it did not subsequently enter an order confirming the arbitration award. Therefore, pursuant to the express terms of § 7320, the Kemethers have not presented an appealable order. See Dunlap by Hoffman v. State Farm Ins., 377 Pa.Super. 165, 168, 546 A.2d 1209, 1210 (1988) (“a court order denying a petition to vacate ... is not an appealable order under § 7320(a)”). Rather, as the Majority recognizes, “[t]he proper procedure is for the court to enter an order confirming the arbitrators’ award, either simultaneously with or following the entry of the order denying the petition to vacate or modify. It is from this confirming order that an appeal lies.” Majority op. at 471, citing Dunlap; see also Seay v. Prudential Property & Casualty Ins., 375 Pa.Super. 37, 543 A.2d 1166 (1988), appeal dismissed, 523 Pa. 105, 565 A.2d 159 (1989) (order confirming arbitration award as well as entry of judgment thereon in accordance with § 7316 are prerequisites to appeal). Therefore, the present appeal should be quashed.

In determining that this appeal may lie, the Majority reasons that it was incumbent upon the trial court to enter a *475confirming order. Therefore, the Majority finds that the Kemethers should not be held accountable for the court’s failure. In reaching this conclusion, my colleagues refer to the following language from the Dunlap case:

[Ojnce appellant’s petition to set aside i.e. vacate was denied, it was not appellant’s obligation to file an application to confirm the award denying appellant recovery, but, rather, the obligation of the trial court to enter an order confirming the award simultaneously with the order denying appellant’s petition to set aside.

Majority op. at 471, quoting Dunlap, supra, 377 Pa.Super. at 170, 546 A.2d at 1211. However, the Majority’s conclusion overlooks the fact that, in Dunlap, this Court, when presented with an appeal from an order denying an insured party’s petition to set aside an adverse arbitration award, remanded the matter for entry of a confirming order and judgment thereon. Therefore, the Majority’s reliance on Dunlap, in support of its decision that the present appeal may lie, is misplaced. See also Carroll v. State Farm Mutual Auto. Ins., 420 Pa.Super. 215, 223 n. 12, 616 A.2d 660, 664 n. 12 (1992), appeal denied, 533 Pa. 641, 622 A.2d 1374 (1993) (once a petition to vacate an award is denied, a subsequent final judgment is to be entered with respect to an order confirming an arbitration award before appeal is proper).

Based on the foregoing, I am constrained to conclude that the lack of an order confirming the arbitration award is fatal to the Kemethers’ appeal. Therefore, I would quash the appeal. Accordingly, I must respectfully dissent.