State Farm insurance Company v. Mc Ateer, D. ( 2019 )

J-A27040-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
STATE FARM INSURANCE COMPANY : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DAWN MCATEER :
:
Appellant : No. 576 EDA 2018
Appeal from the Order Entered January 17, 2018
In the Court of Common Pleas of Bucks County Civil Division at No(s):
2012-01070
BEFORE: BOWES, J., STABILE, J., and McLAUGHLIN, J.
MEMORANDUM BY McLAUGHLIN, J.: FILED MARCH 05, 2019
Dawn McAteer appeals from the Order entered on January 17, 2018
dismissing her “Petition to Strike, Set Aside and Open Judgment, Award, and
All Actions of Arbitrators.” She maintains that she was denied a full and fair
arbitration hearing and that the judgment entered on the resultant award is
therefore void. We affirm.
The trial court aptly summarized the procedural history and facts of this
case as follows:
On July 31, 2001, [McAteer] was involved in a vehicle accident
resulting in personal injury. [State Farm] insured [McAteer] at the
time of the accident. On December 2, 2002, [McAteer] sued the
alleged tortfeasor in The Philadelphia Court of Common Pleas
resulting in settlement on or about October of 2003.
On April 23, 2004, [McAteer] filed a Petition to Appoint
Arbitrator and Compel Arbitration in the Philadelphia Court of
Common Pleas. [McAteer] challenged the policy coverage
provided by [State Farm] for uninsured motorists. After engaging
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in discovery to discern where the Petition should be litigated and
what policy provisions apply, the Philadelphia Court of Common
Pleas transferred the case to Bucks County on July 19, 2004, due
to the insurance policy stating arbitration “shall take place in the
county in which the insured resides.”
[McAteer] averred she lived in Philadelphia in the instant
Petition, however, she also averred she was a resident of Bucks
County in previous matters.
[McAteer] changed counsel in 2011. On November 15,
2011, [McAteer] filed a second Petition to Appoint Arbitrator and
Compel Arbitration in Court of Common Pleas of Philadelphia. After
filing the second petition, counsel retired, and again new counsel
was retained. Thereafter, The Philadelphia Court of Common Pleas
again transferred the second Petition to Bucks County. [McAteer]
appeal the court’s decision and the Superior Court held, inter alia:
[McAteer] develops no argument related to the trial
court’s determinations that it was bound by the 2004
ruling transferring venue to Bucks County and that
she failed to assert a specific contractual basis that
permitted venue in any county in which she resided at
the time of filing her petition. Accordingly, we have no
basis on which to grant relief. See Pa.R.A.P. 302(a),
2119(a); Creazzo v. Medtronic, Inc., 903 A.2d 24,
28 (Pa.Super. 2006).
McAteer v. State Farm Mut. Auto. Ins. Co., No. 1428 EDA
2013, at *3 (Pa.Super. Jan. 7, 2014) (unpublished opinion).
On February 6, 2012, [State Farm] filed a Petition to Appoint
Arbitrator(s) whilst [McAteer] second Petition was pending. After
repeated attempts to serve this third Petition on [McAteer] at
various addresses, this [c]ourt entered an Order granting
alternative service by means of publication, or regular and
certified U.S. Mail, and by serving [McAteer’s] last known attorney
of record. [McAteer] avers “[a]t no time was an arbitration
scheduled and held by the arbitration panel or was any notice of
anything provided to Dawn McAteer relating to or regarding the
third petition.” In fact, The Bucks County Prothonotary and [State
Farm] issued notice by several means.
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The Court entered a Rule to Show Cause on November 6,
2013. [McAteer] failed to respond by December 2, 2013, and on
April 21, 2014, [State Farm] entered a Motion to Make Rule
Absolute. The Court entered an Order on May 6, 2014, making
rule absolute. [State Farm] filed a Motion to Dismiss for Lack of
Prosecution and Violation of the Order to the Court, which was
granted. [McAteer’s] counsel did not answer the phone calls, or
messages from the neutral arbitrator attempting to schedule an
arbitration hearing. Due to [McAteer’s] inaction, in their arbitrator
did not participate in the proceedings and the panel decided in
favor of [State Farm] on November 3, 2014. A Judgment on the
Award of the Arbitrators in favor of [State Farm] was entered on
December 10, 2014. Notice of the Judgment was mailed in
accordance with Pa.R.C.P. 236.
Nearly two (2) years later, [McAteer] filed the instant
Petition to Strike, Set Aside and Open Judgment, Award, and All
Actions of the Arbitrators on December 6, 2016. [State Farm]
sought a Protective Order from the Court on January 25, 2017.
The parties sought a ruling on [McAteer’s] Petition to Strike/Open
and [State Farm’s] Protective Order in accordance with Bucks
county Rule of Civil Procedure 208.3(b). On January 18, 2018, this
Court entered an Order granting [State Farm’s] Protective Order
and denying [McAteer’s] Petition to Strike, Set Aside, and Open
the Judgment. [McAteer] filed his Notice of Appeal on February
20, 2018.
Trial Court Opinion (“TCO”), filed May 1, 2018, at 1-4.
McAteer’s brief identifies one issue for appellate review: “Whether the
trial court erred in dismissing [McAteer’s] petition to strike the award entered
in the arbitration of her uninsured/underinsured motorist claim?” McAteer’s
Br. at 3.
The trial court notes that McAteer failed to file her Pa.R.A.P. 1925(b)
statement with the court’s prothonotary, but evidently delivered it to the trial
judge. Our review of the docket confirms that she failed to file her Rule
1925(b) statement, and indeed, it does not appear in the certified record.
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McAteer thus waived all issues on appeal. See Pa.R.A.P. 1925(b)(4)(vii)
(“Issues not included in the Statement and/or not raised in accordance with
the provisions of this paragraph (b)(4) are waived.”); Greater Erie Indus.
Dev. Corp. v. Presque Isle Downs, Inc., 88 A.3d 222, 223 (Pa.Super.
2014) (en banc) (holding appellant waived all issues on appeal by filing
untimely Rule 1925(b) statement, even though trial court accepted untimely
statement and issued an opinion).1
Moreover, the 58-paragraph Rule 1925(b) statement she attached to
her brief – even assuming it is the same as what she delivered to the trial
judge – preserved no issues due to its incoherence. See Commonwealth v.
Ray, 134 A.3d 1109, 1114 (Pa.Super. 2016); Tucker v. R.M. Tours, 939
A.2d 343, 346 (Pa.Super. 2007). What is more, none of the many issues she
catalogues in her lengthy Rule 1925(b) statement correspond to the one issue
McAteer lists in her Statement of Questions Presented. See Krebs v. United
Refining Co. of Pa., 893 A.2d 776, 797 (Pa.Super. 2006). As such, we
conclude that McAteer waived all issues on appeal.
In any event, the trial court properly dismissed her petition. Despite the
broad title she gave to her petition, the only relief she sought was to set aside
the arbitration award. However, McAteer filed her petition nearly two years
after receiving the arbitration award, when she ought to have filed it within
____________________________________________
1 See also Paluch v. Beard, 182 A.3d 502, 503-04 (Pa.Cmwlth. 2018)
(holding appellant waived all issues on appeal by filing untimely Rule 1925(b)
statement, and did not show “good cause” for remand to file it nunc pro tunc).
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30 days. 42 Pa.C.S. 7315(a); Maxton v. Phila. Housing Auth., 454 A.2d
618, 619 (Pa.Super. 1982). The fact that McAteer’s insurance policy provides
for arbitration under the now-repealed Pennsylvania Arbitration Act of 1927
(“1927 Act”)2 does not change the outcome. Even the 1927 Act’s provision of
90 days in which to seek relief in court from an arbitration award would not
help McAteer. In any event, although parties to a contract may elect to
arbitrate disputes under the 1927 Act’s substantive standards, they cannot
choose that act’s procedural provisions, such as the 90-day period for petitions
to court. Maxton, 454 A.2d at 619.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/5/19
____________________________________________
2 See State Farm Insurance Policy, at 20.
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