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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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
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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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J. A22039/14

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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