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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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
J-A27040-18


     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.


                                      -3-
J-A27040-18



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).

                                           -4-
J-A27040-18



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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