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J.A34003/01
2001 PA Super 379
STIVERS TEMPORARY PERSONNEL, INC., :
IN THE SUPERIOR COURT OF
Appellee
:
SUPERIOR COURT
:
vs.
:
:
DONALD BROWN, ESQUIRE,
:
Appellant
:
No. 918 EDA 2001
Appeal from the Order entered February 23, 2001
In the Court of Common Pleas of Montgomery County
Civil, No. 98-00824
BEFORE: JOHNSON, TODD, and KELLY, JJ.
OPINION BY KELLY, J.:
Filed: December 28, 2001
¶ 1
In this appeal we must decide whether the trial court had jurisdiction
to review Appellant's petition to vacate a compulsory arbitration award filed
58 days after the prothonotary entered the arbitration award on the docket.
We hold that under the Pennsylvania Rules of Civil Procedure, a party
challenging a compulsory arbitration award must file an appeal for a trial de
novo. We further hold that a compulsory arbitration award becomes final
and appealable 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).
Accordingly, we affirm the trial court's order striking Appellant's petition at
this time with prejudice.
¶ 2
The relevant facts and procedural history of this appeal are as follows.
Appellant is an attorney. In 1997, he contracted with Appellee, a temporary
personnel agency, to provide him with secretarial services. Appellee billed

J.A34003/01
Appellant $22,754.05 for the services provided by its laborers. However,
Appellant paid only $15,618.77 for the services. Appellant refused to pay
the remaining $7,135.28 because, as he later alleged, the quality of the
work provided was not as guaranteed.
¶ 3
On January 30, 1998, Appellee filed a complaint seeking the unpaid
balance on Appellant's account ($7,135.28). On May 27, 1998, Appellant
filed an amended complaint to which Appellant filed an answer asserting new
matter and a counter-claim. Appellant's counter claim alleged that the
incompetence of Appellee's laborers caused him damages in excess of
$20,000.00.
¶ 4
The court scheduled a compulsory arbitration hearing for November
20, 2000. Appellant alleges that on the day of the hearing, he and Appellee
were sent to the wrong room to await the arbitrators. Appellee's counsel
alleges that when she checked in at the courthouse administrative office, she
was sent to the room in which the arbitration panel was seated. Appellee's
counsel further alleges that after the entire panel arrived, counsel went to
the court administration office to determine the whereabouts of Appellant,
who had not yet checked in. Appellee's counsel avers that upon her return,
the arbitration panel reviewed her pleadings and exhibits. The panel found
for Appellee in the amount of $8,526.66 and ruled against Appellant on his
counter-claim. The prothonotary entered the award on the docket on
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J.A34003/01
November 21, 2000, and sent the required notice to the parties, pursuant to
Pa.R.C.P. 1307, on the same day.
¶ 5
Rather than file an appeal for a trial de novo, Appellant chose to file a
"Petition to Vacate Award of Arbitrators for [Appellee] in Civil Action No. 98-
00824 and to Enter Judgment in Favor of [Appellant]." Appellant filed this
petition on January 18, 2001. On February 23, 2001, the trial court struck
Appellant's petition without prejudice. Appellant filed this appeal in due
course on March 22, 2001.
¶ 6
Appellant raises the following issue on appeal:
DID THE [TRIAL] COURT ERR IN REFUSING TO VACATE AN
ARBITRATION AWARD ENTERED IN FAVOR OF THE
[APPELLEE], DESPITE THE FAILURE OF THE [APPELLEE] TO
APPEAR AT THE ARBITRATION HEARING, IN VIOLATION
OF PA.R.[C.]P. 1304(A)?
(Appellant's Brief at 2).
¶ 7
As a prefatory matter, the trial court stated that its order struck
Appellant's petition "without prejudice." On page two of the Trial Court
Opinion, dated April 27, 2001, the trial court also noted "[t]o date, neither
party has filled a Praecipe requesting the entry of judgment." The trial court
suggests that Appellant's appeal is, therefore, interlocutory. We respectfully
disagree.
¶ 8
"The appealability of an order is a question of jurisdiction and may be
raised sua sponte." Bolmgren v. State Farm Fire and Cas. Co., 758 A.2d
689, 690 (Pa.Super. 2000). It is well settled that an appeal may be taken
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J.A34003/01
from a final order of the trial court. Techtmann v. Howie, 720 A.2d 143
(Pa.Super. 1998). "An order is final, and not interlocutory, if it prevents a
party from presenting the merits of its claim in the trial court." Noll by Noll
v. Harrisburgh Area YMCA, 537 Pa. 274, 279, 643 A.2d 81, 83 (1994).
¶ 9
Additionally, Section 7361 of Subchapter C, Judicial Arbitration
governs compulsory arbitration. Subsection (d) provides:
(d) Appeal for a trial de novo. Any party to a matter
shall have the right to appeal for a trial de novo in the
court. The party who takes the appeal shall pay such
amount or proportion of fees and costs and shall comply
with such other procedures as shall be prescribed by
general rules. In the absence of appeal the judgment
entered on the award of arbitrators shall be enforced
as any other judgment of court. For purposes of this
section and section 5571 (relating to appeals generally) an
award of arbitrators constitutes an order of a tribunal.
42 Pa.C.S.A. § 7361(d) (emphasis added).
¶ 10 In the instant case, the arbitrators forwarded the compulsory
arbitration award to the Prothonotary's office, which entered the award on
the docket on November 21, 2000. Upon entry of the compulsory arbitration
award on the docket and appropriate notice, the award took the force and
effect of a final judgment. See id. 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
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J.A34003/01
praecipe the prothonotary to enter judgment on the award. See 42
Pa.C.S.A. § 7361(d).
¶ 11 Moreover, under the applicable rules, Appellant's only recourse to
challenge the compulsory arbitration award was to file for a trial de novo
with the Court of Common Pleas within 30 days. See Lough v. Spring, 556
A.2d 441 (Pa.Super. 1989) (stating sole avenue to challenge compulsory
arbitration award is to file appeal for trial de novo). Instead, Appellant
chose to file a "Petition to Vacate Award of Arbitrators for [Appellee] in Civil
Action No. 98-00824 and to Enter Judgment in Favor of [Appellant]."
Appellant did not file his petition until January 18, 2001, more than 30 days
after the award was entered on the docket. Based upon the following
rationale, we conclude that the trial court could not have taken any further
action regarding Appellant's petition. Therefore, we shall deem the court's
order striking Appellant's petition as a final and appealable order, although
the order states "without prejudice," as the court's order prevents Appellant
from presenting the merits of his claim in the trial court. See Noll, supra.
¶ 12 We now turn our attention to whether the trial court had jurisdiction to
review Appellant'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. On this issue, Appellant argues that under Pa.R.C.P.
1304(a), the arbitrators were required to enter an award in his favor when
Appellee failed to appear at arbitration. Appellant also asserts that under
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J.A34003/01
Pa.R.C.P. 1307(d), a trial court may mold an award when the record
discloses obvious errors in either the mathematics or language of the award.
Appellant contends that the arbitrators clearly disregarded Rule 1304(a)
when they found for Appellee, and maintains that such a patent error allows
the trial court to mold the award in favor of Appellant. Appellant concedes
that the proper method to attack a compulsory arbitration award is to file an
appeal to the court of common pleas for a trial de novo, under Pa.R.C.P.
1308. However, Appellant chose not to follow this procedure because a trial
de novo would have afforded Appellee an opportunity to present evidence;
an opportunity Appellant avers Appellee waived when it "failed to appear" at
the arbitration hearing. Finally, Appellant alleges that under Wilk v. Girard
Bank, 493 A.2d 695 (Pa.Super. 1985), his failure to file an appeal for a trial
de novo should be excused in the interests of justice. Appellant concludes
that the trial court should hear his petition. We disagree.
¶ 13 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.
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J.A34003/01
¶ 14 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.Cons.Stat.Ann. § 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 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
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J.A34003/01
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. Albert
v. Denito, 336 Pa.Super. 284, 485 A.2d 806 (1984).
Lough, supra at 442-43 (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), appeal denied, 561
Pa. 659, 747 A.2d 901 (1999).
¶ 15 In Wilk, the Court permitted a nunc pro tunc appeal for a trial de novo
from an arbitration award. However, the Wilk case is readily distinguishable
from the matter at issue. The appellant in Wilk relied on the assertion of a
court employee that a letter sent within the thirty-day appeal period was
sufficient to protect his appeal rights. Confining its holding to the facts of
that case and warning that the opinion should not be construed as
condoning noncompliance with the rules governing compulsory arbitration,
the court treated the appellant's late petition as an appeal nunc pro tunc,
affirmed the trial court's order opening the judgment entered on the
arbitration award, and remanded the matter for a trial de novo.
¶ 16 In the instant case, Appellant did not petition the trial court to
reinstate his appeal rights nunc pro tunc. Further, Appellant has not alleged
any breakdown in court operations or other unusual circumstances that
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J.A34003/01
would entitle him to such relief. Thus, Appellant's case is distinguishable
from the facts in Wilk, supra, and he is not entitled to the equitable
suspension of the compulsory arbitration rules afforded the appellant in the
Wilk case. Appellant's reliance on Wilk is misplaced.
¶ 17 Moreover, Appellant has not asked the court to correct a typographical
or mathematical error in the arbitration award. See Lough, supra. To the
contrary, Appellant has asked the trial court to vacate the award completely,
and enter judgment in his favor. Such relief is not considered "molding" the
award and is, therefore, not the type of relief available under Pa.R.C.P.
1307. See id.; Pa.R.C.P. 1307.
¶ 18 Most importantly, Appellant 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.
¶ 19 Based upon the foregoing, we hold that the court properly struck
Appellant's petition, because Appellant did not file a timely appeal for a trial
de novo. Id. Accordingly, we affirm the trial court's order at this time with
prejudice.
¶ 20 Order affirmed.
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