Post River Road v. Aspen Specialty Insurance Co.

J-A21038-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
POST RIVER ROAD, LLC, POST RIVER : IN THE SUPERIOR COURT OF
ROAD URBAN RENEWAL, LLC : PENNSYLVANIA
AND DUCHESS NJ LLC :
:
Appellant :
:
:
v. :
: No. 1317 EDA 2021
:
ASPEN SPECIALTY INSURANCE :
COMPANY :
Appeal from the Order Entered May 25, 2021
In the Court of Common Pleas of Philadelphia County Civil Division at
No(s): 190606725
BEFORE: LAZARUS, J., MURRAY, J., and McCAFFERY, J.
MEMORANDUM BY McCAFFERY, J.: FILED NOVEMBER 1, 2022
Post River Road, LLC, Post River Road Urban Renewal, LLC, and Duchess
NJ LLC (collectively, Appellants) appeal from the order entered in the
Philadelphia Court of Common Pleas, denying their motion to compel
appraisal.1 Appellants filed a complaint against their insurer, Aspen Specialty
Insurance Company (Appellee), concerning insurance coverage for their claim
of “soft costs,” and subsequently filed a motion to compel appraisal concerning
claims for other expenses. On appeal, Appellants aver the trial court: (1)
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1 As we discuss infra, for purposes of enforceability a petition to compel
appraisal will be treated like a petition to compel arbitration. McGourty v.
Pa. Millers Mut. Ins. Co., 704 A.2d 663, 664 (Pa. Super. 1997) (per curiam).
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erred in confusing the claims they intended to separately pursue through
appraisal and their complaint; and (2) misinterpreted the language of the
insurance policy that governs when an appraisal may be demanded. We
determine the certified record does not show whether the trial court fully
considered these issues. Thus, we vacate the order and remand for further
consideration.
I. Appealability of Order Denying Motion to Compel Appraisal
We first consider the appealability of the underlying order; Appellants
have raised this issue in their statement of questions involved. “It is well-
settled that . . . an appeal may only be taken from an interlocutory order as
of right (Pa.R.A.P. 311), from a final order (Pa.R.A.P. 341), from a collateral
order (Pa.R.A.P. 313), or from any interlocutory order by permission
(Pa.R.A.P. 312[,] 1311, 42 Pa.C.S.A. § 702(b)).” TTSP Corp. v. Rose Corp.,
217 A.3d 1269, 1277 (Pa. Super. 2019) (some citations and quotation marks
omitted). Rule 311 provides, inter alia, that an interlocutory appeal may be
taken as of right from an order that is made appealable by statute. TTSP
Corp., 217 A.3d at 1277, citing Pa.R.A.P. 311(a)(8). Section 7320 of the
Judicial Code, in turn, states that an appeal may be taken from an “order
denying an application to compel arbitration[.]” 42 Pa.C.S. § 7320(a)(1).
This Court has stated,
Both the appraisal and arbitration process are intended as
alternatives to litigation whereby the parties submit the issues in
dispute to an independent counsel for resolution. The only
distinction between arbitration and appraisal is the scope of
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issues . . . . An appraisal is limited to determining the amount of
the loss with all other issues reserved for settlement by either
negotiation or litigation, while arbitration considers all issues
necessary for disposition of the entire controversy between the
parties. For purposes of enforceability, there is no distinction
between arbitration and appraisal.
McGourty, 704 A.2d at 664 (citations omitted).
Construing the above principles together, we conclude the underlying
order denying Appellants’ motion to compel appraisal is immediately
appealable, and this Court may properly exercise jurisdiction over this appeal.
See 42 Pa.C.S. § 7320(a)(1); McGourty, 704 A.2d at 664. See also Prof’l,
Inc. v. Mut. Ben. Ins. Co., 1155 WDA 2019 (unpub. memo. at 12-13) (Pa.
Super. Nov. 17, 2020) (citing McGourty and concluding order denying
request to compel appraisal was immediately appealable).2
II. Facts & Procedural History
Appellants are four developers of a large apartment complex in North
Bergen, New Jersey.3 The complex was insured by Appellee insurance
company. The parties’ insurance policy contained the following appraisal
provision:
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2See Pa.R.A.P. 126(b)(2) (non-precedential decisions filed after May 1, 2019,
may be cited for their persuasive value).
3 Trial Ct. Op., 2/4/22, at 1. Post River Road, LLC and Duchess NJ LLC have
principal places of business in Pennsylvania. Appellants’ Complaint, 6/20/19,
at ¶¶ 8, 10. Post River Road Urban Renewal, LLC is a wholly owned subsidiary
of Post River Road, LLC. Id. at ¶ 9.
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If [Appellants] and [Appellee] fail to agree as to the amount of
loss, each shall, on the written demand of either, made within
60 days after receipt of proof of loss by [Appellee], select a
competent and disinterested appraiser, the appraisal shall be
made at a reasonable time and place.
Commercial Property Insurance Policy (undated) at 14 (emphases added),
Exh. 1 to Appellants’ Complaint, 6/20/19.
On January 3, 2018, a pipe burst at the apartment building, and “[w]ater
flooded into parts of the building which were already completed and
occupied[,]” as well as into unfinished and unoccupied apartments. Trial Ct.
Op. at 2.
“A major issue between the parties is” is the coverage or categorization
of what the parties have termed “soft costs,” defined by Appellants to include
mortgage interests, payroll, insurance, real estate taxes, and advertising
expenses. Trial Ct. Op. at 2; Appellants’ Complaint at 5, 7. Appellants aver
“soft costs” merit their own line item, separate from “business costs,” and
submitted claims to Appellee of $3,082,860.74 for “soft costs.” See
Appellant’s Complaint at 7. Appellee, on the other hand, contends that “soft
costs” “should be calculated within [the] line item designated ‘business
costs[.]” Trial Ct. Op. at 2 (emphasis added). On April 16, 2019, in a “Partial
Declination of Coverage” letter, Appellee authorized payment of $256,531 for
“business costs.” Trial Ct. Op. at 2-3.
Meanwhile, we glean the following from the exhibits to the parties’
pleadings. Appellants also submitted claims of: (1) $1,427,181.26 for lost
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rents; (2) $125,006.18 for “extra expenses;”4 and (3) other enumerated
expenses. Letter from Appellants to Crawford Global Technical Services,
2/5/19, at 2, Exh. 6 to Appellants’ Complaint. In the April 16, 2019, “Partial
Declination of Coverage” letter, Appellee listed the same claims — together
with Appellant’s “soft costs” claim —under the heading “Time Element.”
Appellee’s Partial Declination of Coverage Letter, 4/16/19, at 2, Exh. 10 to
Appellants’ Complaint. Appellee informed Appellants that its “investigation
has determined that the total covered loss for [this] time element claim was
already paid in the amount of $256,531.” Id.
Shortly thereafter, on June 20, 2019, Appellants filed a complaint
against Appellee, averring breach of contract and bad faith for failure to fully
pay for “soft costs.” Paragraph 50 of the complaint stated: (1) the parties
also disputed the proper amounts of “Rental Loss and business income loss;”
(2) the insurance policy provided that all disagreements over the amount of
loss only were to be submitted to appraisal; and thus (3) Appellants would
pursue this disagreement separately through appraisal. Appellants’ Complaint
at 12.
Six months later, on December 20, 2019, Appellants “made [their] first
demand for appraisal in a letter.” Trial Ct. Op. at 3.
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4 The policy defined “extra expenses” as those “necessarily incurred for the
purpose of reducing loss[,] including those expenses in excess of those the
insured would have incurred had there been no loss.” N.T., 5/19/21, at 6-7.
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[Appellee] acknowledged the letter on January 17, 2020[,] but did
not state any definite position. For another 7 months,
[Appellants] took no further steps to seek an appraisal.
[Appellants] continued litigation in preparation for trial[, which]
included discovery[,] discovery hearings and . . . adjudication of
[Appellants’] partial summary judgment motion which [was]
denied on March 10, 2021[.]
Id.
On August 12, 2020, Appellants filed, at the same docket as their
complaint, a motion to compel appraisal of rental loss and “extra expenses,”
contending that despite several communications, Appellee had not yet agreed
to appraisal on these claims. Appellants reiterated, in its accompanying
memorandum of law, that because the only issue over rental loss and “extra
expenses” was the amount of loss, appraisal was appropriate. This motion
did not refer to “soft costs,” which was the issue raised in Appellants’
complaint. The motion was improperly docketed as a discovery motion.
Appellants then filed a “Renewed Motion” to compel appraisal on February 15,
2021 — identical to the first motion — “which was accepted by [the trial
court’s] civil protonotary with a motions control number.” Trial Ct. Op. at 4.
On March 2, 2021, Appellee filed a reply to the motion to compel
appraisal. Pertinently, it contended Appellants’ demand for an appraisal was
not ripe, where: (1) Appellants had not filed a proof of loss for the claim, as
required by the terms of the policy; and thus (2) “the conditions precedent for
an appraisal have not been satisfied[.]” Appellee’s Opposition to Appellants’
Motion to Compel Appraisal at 5. Appellees also referred to the parties’
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disagreement over coverage for “soft costs,” stating “any Soft Costs incurred
by the loss were reimbursed as part of [Appellee’s] payment towards the
Claim.” Id. at 3. To this end, Appellee averred “all of” Appellants’ issues
related to the question of coverage and thus were beyond the scope of
appraisal, which is limited solely to disputes over the amount of loss. Id. at
5.
On May 19, 2021, the trial court conducted a brief hearing on Appellants’
motion to compel appraisal.5 Appellants continued to argue the parties did
not “dispute that there is coverage for rental loss and extra expense[,] the
only dispute [is] the amount of loss,” and thus the issue should be submitted
to appraisal. N.T., 5/19/21, at 5. The trial court asked what “extra expenses”
were, and Appellants explained that under the policy, they were expenses
“necessarily incurred for the purpose of reducing loss[,] including those
expenses in excess of those the insured would have incurred had there been
no loss.” Id. at 6-7. The trial court responded as follows:
THE COURT: So exactly how do you presume that that’s going to
be done without a trial?
[Appellants]: It goes to appraisal.
THE COURT: No, . . . that’s not happening here. You’re not going
to put the cart before the horse. That’s not happening here. We
are going to have a trial on what the expenses would have been
versus what they might have been. We’re not going to farm this
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5The transcript for this hearing spanned 11 pages, inclusive of the cover page
and list of counsel appearances.
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out to an appraiser before there’s some factual issues that need
to be decided. . . .
Id. at 7.
Appellee then argued the following: its forensic accountant determined
there was approximately $256,000 in lost rents, and “[t]he dispute as to the
remaining amounts is a coverage issue[,] which is beyond the purview of an
appraisal.” N.T. at 7-8. However, the trial court asked if Appellee conceded
the policy required it to pay “for, quote, unquote, other expenses[,]” and
Appellee replied, “Yes, extra expenses.” Id. at 8 (emphasis added). The
following exchange thereafter ensued:
THE COURT: So the dispute, from your vantage point, is
exactly what’s covered by this terminology of other expenses, am
I right?
[Appellee]: Correct.
THE COURT: And so at the end of the day that’s the jury
question, correct?
[Appellee]: Correct.
THE COURT: So why are we putting the cart before the horse,
[Appellants]?
[Appellants]: Because, Your Honor, I think that the issue is
not the coverage for the rental loss or the extra expense because
[Appellee has] admitted it’s covered; it’s how much is the extra
expense lost and how much is the rental loss?
THE COURT: I’m going to let a jury decide that[.]
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Id. The court thus denied Appellants’ motion to compel appraisal. Appellants
timely appealed.6
III. Trial Court Opinion
In its opinion, the trial court stated the following grounds for denying
Appellants’ motion for appraisal. First, Appellants failed to demand an
appraisal within 60 days “after receipt of proof loss by” Appellee, as required
by the terms of the policy. Trial Ct. Op. at 5. The court reasoned: the trigger
date to seek an appraisal “was April 16, 2019, when [Appellee] awarded
$256,531 and [Appellants] believed [they were] entitled to more — namely
soft costs which [Appellee] had subsumed.” Id. at 4, 5.
Second, the trial court found the parties’ dispute — “whether ‘soft costs’
are to be evaluated as separate coverage . . . when ‘business costs’ are paid”
— was not within the scope of the appraisal provision. Trial Ct. Op. at 6.
Finally, the court concluded Appellants waived their demand for an appraisal
by, inter alia, accepting judicial process, by filing a complaint and a motion for
summary judgment, requesting a jury, and taking discovery. Id. at 7.
The trial court also addressed Paragraph 50 of Appellants’ complaint,
which stated they would separately “contest [Appellee’s] lowball estimates for
Extra Expense, Rental Loss and business income through appraisal.” Trial Ct.
____________________________________________
6The trial court did not direct Appellants to file a Pa.R.A.P. 1925(b) statement
of errors complained of on appeal.
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Op. at 7. The court reasoned Appellants’ bad faith claim “alleged failure to
pay both soft costs and business costs before actually demanding an
appraisal,” and thus they “appear[ ] to have used the court process with
sleight of hand.” Id. at 7.
IV. Questions Presented
Appellants present four related issues for this Court’s review:7
[1.] Is the Trial Court’s Order denying [Appellants’] Motion to
Compel Appraisal immediately appealable as of right?
[2.] Did the Trial Court err in denying [Appellants’] Motion to
Compel Appraisal when the only issue was the amount of rental
loss and extra expense loss?
[3.] Did the Trial Court err in holding that [Appellants] waived the
right to demand appraisal under the insurance policy?
[4.] Did [Appellants] timely demand appraisal?
Appellants’ Brief at 4.
V. Standard of Review & Relevant Authority
As stated above, for purposes of enforcement, we treat a motion to
compel appraisal like a motion to compel arbitration. This Court has stated:
We review a trial court’s denial of a motion to compel arbitration
for an abuse of discretion and to determine whether the trial
court’s findings are supported by substantial evidence. In doing
so, we employ a two-part test to determine whether the trial court
should have compelled arbitration[: (1)] whether a valid
agreement to arbitrate exists[; and (2)] whether the dispute is
within the scope of the agreement.
____________________________________________
7 We have reordered the issues for ease of review. The first issue has been
resolved above.
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Whether a claim is within the scope of an arbitration provision is
a matter of contract, and as with all questions of law, our review
of the trial court’s conclusion is plenary. “The scope of arbitration
is determined by the intention of the parties as ascertained in
accordance with the rules governing contracts generally.” “These
are questions of law and our review is plenary.”
Arbitration is a matter of contract, and parties to a contract cannot
be compelled to arbitrate a given issue absent an agreement
between them to arbitrate that issue. Even though it is now the
policy of the law to favor settlement of disputes by arbitration and
to promote the swift and orderly disposition of claims, arbitration
agreements are to be strictly construed and such agreements
should not be extended by implication.
Elwyn v. DeLuca, 48 A.3d 457, 461 (Pa. Super. 2012) (citations omitted).
VI. Parties’ Arguments – Appraisal v. Litigation
In their second issue, Appellants argue the trial court erred in: (1)
misidentifying the issue raised in their motion to compel appraisal; and (2)
finding it fell outside the scope of the policy’s appraisal provision. Appellants’
Brief at 19. Appellants maintain they are pursuing two discrete claims through
separate avenues: (1) the dispute over the amount of their rental and “extra
expenses” losses, which should be submitted to appraisal; and (2) the
question of whether “soft costs” are to be covered separately from business
costs, which is the subject of its complaint. Id. at 20. Appellants maintain
the first issue “falls squarely within the appraisal provision of the insurance
policy,” where Appellee admitted “it owed coverage for rental loss and extra
expenses and paid what it calculated as the [proper] amount of those
losses[.]” Id. at 20, 21. Appellants then contend the trial court mistakenly
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believed it was the latter issue that is the subject of their demand for
appraisal. Id. at 19-20.
Appellee responds that contrary to Appellants’ “bald assertions,” it “has
not admitted coverage for the Total Claim,” which Appellee defines to mean
“soft costs,” lost rent, together with “extra expense[s].”8 Appellee’s Brief at
6-7, 21. Appellee cites the trial court’s summation of the issue to be “what is
or is not lost rent, loss of business income or extra expense[.]” Id. at 20-21,
citing N.T. at 7 (“We are going to have a trial on what the expenses would
have been versus what they might have been.”). Thus, Appellee claims, the
trial court properly determined the underlying issue goes to the question of
coverage, not the valuation of loss, and is therefore outside the appraisal
provision. Appellee’s Brief at 18.
We remand for the trial court’s further consideration of the above
arguments.
VII. Analysis: Appraisal v. Litigation
After careful review of the record, we observe multiple irregularities and
unanswered issues in this matter. First, we reiterate Appellants’ central
argument — that the trial court conflated their claims for “soft costs,” which
are the subject of their complaint, with rental loss and “extra expenses,” which
____________________________________________
8 Appellee also includes Appellants’ claims for “temporary housing,” “loss
adjusting fees,” and “loss to lease” in their reference to “Total Claim.”
Appellee’s Brief at 6-7.
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is wholly unrelated to the complaint. The pleadings, however, do not explain
why Appellants filed their motion to compel appraisal at the same docket as
their complaint. In essence, Appellants sought a judicial order compelling
appraisal for issues and/or costs that they vehemently aver are not at issue
in this litigation. Since Appellants concede that the relief sought in their
pleadings is confined to “soft costs,” we are not sure why any relief or
argument, for any damages not agreed to be “soft costs,” should be
entertained in this litigation.9
Next, we observe the parties seem unable to agree on a preliminary
issue — which costs fall into which category — and the trial court has not
made any findings thereto.10 The question of how “soft costs,” lost rent, and
“extra expenses” cannot be meaningfully resolved cannot be considered until
there is a prefatory agreement — or finding by the trial court — as to what
these categories are comprised of. At the hearing, as stated above, the trial
court asked what “extra expenses” were, but Appellants did not cite any
specific examples, and instead broadly and vaguely stated “extra expenses”
____________________________________________
9We emphasize that in the absence of any discussion on this issue, we offer
no opinion as to whether Appellants’ filing at the same docket was proper; we
merely point this out as an unaddressed issue.
10 There also appear to be additional categories of expenses, including
“temporary housing,” “loss adjusting fees,” and “loss to lease.” See, e.g.
Letter from Appellants to Crawford Global Technical Services, 2/5/19, at 2,
Exh. 6 to Appellants’ Complaint.
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were expenses “necessarily incurred for the purpose of reducing loss[,]
including those expenses in excess of those the insured would have incurred
had there been no loss.” N.T. at 6-7. The court responded:
You’re not going to put the cart before the horse. . . . We are
going to have a trial on what the expenses would have been
versus what they might have been. We’re not going to farm this
out to an appraiser before there’s some factual issues that need
to be decided.
N.T. at 5, 7.
Meanwhile, in response to consecutive questions posed by the trial
court, Appellee first concedes the policy covers “extra expenses,” but then
appears to contradict itself by noting what constitutes an “extra expense” is a
question for the jury:
THE COURT: . . . Do you concede that there is a clause in
[the policy] that obligates [you] to pay for, quote, unquote, other
expenses?
[Appellee]: Yes, extra expenses.
THE COURT: So the dispute, from your vantage point, is
exactly what’s covered by this terminology of other expenses, am
I right?
[Appellee]: Correct.
THE COURT: And so at the end of the day that’s the jury
question, correct?
[Appellee]: Correct.
See N.T. at 8.
However, to the extent the trial court opined the jury should decide how
each of the numerous expenses in this complex matter should be categorized,
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we emphasize the interpretation of a contract, including the definition of terms
therein, is a question of law. See Miller v. Poole, 45 A.3d 1143, 1145 (Pa.
Super. 2012).
In addition to the lack of any finding as to the categorization of claims,
the trial court’s opinion is entirely unclear as to whether it agrees with
Appellants’ argument, that their two pleadings — the complaint and motion to
compel appraisal — pursued distinct and unrelated claims. As stated above,
in Appellee’s reply to the motion to compel, it asserted that Appellants’ claim
for lost rent concerned coverage and thus was beyond the scope of appraisal,
which was limited to disputes over the amount of coverage. Appellee’s
Opposition to Appellants’ Motion to Compel Appraisal at 5.
First, consistent with Appellants’ position, the trial court summarizes
that: (1) the complaint concerns the parties’ dispute as to whether “soft costs”
is a part of, or should be separate from, “business costs; while (2) Appellants
would contest, through appraisal, Appellee’s “lowball estimates for Extra
Expense, Rental Loss, and business income loss through appraisal.” Trial Ct.
Op. at 2, 7.
Other portions of the trial court’s opinion, however, group together “soft
costs” with lost rents and “extra expenses,” contrary to Appellants’ position.
For example, the court states: “[Appellee] claims that by paying $256,531 for
rental loss, it has no obligation to cover [Appellants’] soft cost insurance
and mortgage payments.” Trial Ct. Op. at 3 (emphases added). The court
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also suggests Appellants are pursuing the same issues in their complaint and
motion to compel appraisal, in stating Appellants’ complaint improperly raised
a “bad faith claim [for] failure to pay both soft costs and business costs
before . . . demanding an appraisal.” Id. at 7. Finally, the court found
Appellants have waived appraisal by availing themselves of the judicial
process, by commencing this lawsuit, taking discovery, and filing a motion for
summary judgment.11 Id. This last statement presumes that Appellants are
seeking to litigate the same issues through its complaint and appraisal.
In light of the brevity of the transcript hearing, the parties’ arguments,
and the trial court’s opinion, we cannot determine on this record whether the
trial court in fact accepted Appellants’ contention that they are pursuing “soft
costs” only through court litigation while separately demanding appraisal for
the distinct and discrete issue, which is the proper valuation of “lost rents”
and “extra expenses.” It is also not clear how the court ruled on the parties’
competing arguments as to whether they agreed lost rents and “extra
expenses” are covered by the policy. If the court found the parties had not
agreed, the court’s reasons are not apparent from the record. See N.T. at 8.
Perhaps adding to this uncertainty is the apparent lack of any finding by the
court as to which expenses constitute a rental loss, “extra expense,” ‘soft
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11 We note, however, Appellants’ motion for partial summary judgment
concerned the issue of coverage for soft costs only. See Appellants’ Motion
for Partial Summary Judgment, 10/21/20, at 1-8.
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cost,” or other type of claim. These issues must be resolved before the court
can determine whether the claim is within the scope of an appraisal provision.
See Elwyn, 48 A.3d at 461.
Accordingly, we vacate the order denying Appellants’ motion for
appraisal and remand for reconsideration. The court shall address specifically
whether the issues raised in Appellants’ motion to compel appraisal are
distinct from those in the complaint, and if so, whether the former are properly
within the scope of the appraisal provision. The court shall also determine
how each line-item expense is to be categorized — a rental loss, “extra
expense,” ‘soft cost,” or other type of claim.12 The court may direct the parties
to file supplemental memoranda, conduct oral arguments and/or schedule
evidentiary hearings, and undertake any other procedures it deems relevant
and beneficial.
VIII. Waiver of Demand for Appraisal
In their third issue, Appellants contend the trial court erred in finding
they waived a demand for appraisal by availing itself of the judicial process.
In support, Appellants present similar arguments — that their complaint raised
one issue, the question of coverage for “soft costs,” while their motion to
compel appraisal concerned a different issue, the proper valuation of lost rents
and “extra expenses.” See Appellants’ Brief at 29-31.
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12 We emphasize we offer no opinion on the merits of these questions.
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Appellants also argue the court misinterpreted the policy language and
erred in finding their motion to compel appraisal was filed late. We reiterate
the policy’s appraisal provision states that a demand for appraisal shall be
“made within 60 days after receipt of proof of loss by [Appellee].” Commercial
Property Insurance Policy at 14. The trial court found that under this
provision, the 60-day period for requesting an appraisal was triggered on April
16, 2019, when Appellee issued its Partial Declination of Coverage Letter. Trial
Ct. Op. at 4.
On appeal, Appellants aver the following: the only trigger for the 60-day
filing period is Appellants’ submission of a proof of loss. Appellants’ Brief at
23. A proof of loss, however, is “not automatically required” under the Policy,
as shown by a separate portion of the Policy, which provides, “Within [60]
days after [Appellee’s] request, [Appellants] shall provide [Appellee] with
a proof of loss . . . .” Id. at 27. Appellants maintain that because no proof
of loss was provided, the 60-day time period was never triggered, and thus
their motion to compel appraisal was not untimely. Id. at 23-24. Appellants
point out this was Appellee’s position in the pleadings. Id. at 25, citing
Appellee’s Opposition to Appellants’ Motion to Compel Appraisal at 5 (“[S]ince
[Appellants have] not filed a proof of loss for the Claim, the conditions
precedent for an appraisal have not been satisfied and therefore the demand
is not ripe.”). For the following reasons, we direct that on remand, the trial
court shall reconsider this issue.
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Appellants correctly point out that in the pleadings before the trial
court, Appellee argued the predicate fact for seeking an appraisal was not
satisfied, where Appellants had not filed a proof of loss for the claim, which
was required by the terms of the policy. See Appellee’s Opposition to
Appellants’ Motion to Compel Appraisal at 5. This issue — the timeliness of
Appellants’ demand for appraisal — however, was not raised at all at the
hearing. The first time the trial court addressed this issue was in its opinion.
On appeal, Appellee now advances a new position, inconsistent with its
pleadings, that echoes the trial court’s reasoning. See Appellee’s Brief at 17
(arguing Appellants’ claim, “that since it did not submit a proof of loss for its
Total Claim, the 60-day time to demand an appraisal was not triggered[,]” “is
directly at odds with the express terms of the Policy”).
As this issue was not addressed at the hearing, we direct that on
remand, the trial court shall also reconsider it.13 Specifically, the court should
consider Appellants’ arguments concerning the plain language of the policy —
that a demand for appraisal shall be made “within 60 days after receipt of
proof of loss by the company,” that a proof of loss is not mandatory, but rather
may merely be requested by Appellee, and that in the absence of a filing of
proof of loss, Appellants may demand appraisal at any time.
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13 We decline to find Appellants have waived any argument, as, again, the first
time the trial court addressed timeliness was after the appeal was taken.
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IX. Conclusion
We conclude it is not apparent from the present record whether the trial
court fully addressed the underlying question of which expenses fell under
which category of claims, or the particular arguments presented by both
parties. We reiterate the court addressed the timeliness of Appellants’ motion
to compel appraisal for the first time after Appellants filed the notice of
appeal. Accordingly, we vacate the order denying the motion to compel
appraisal and remand for reconsideration.
Order vacated. Case remanded for proceedings consistent with this
memorandum. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/1/2022
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