Davis III, C. v. Hartford Fire Ins. Co.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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 -27- 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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