J-S03031-18


                               2018 PA Super 25

 MARC BLUCAS AND RYAN BLUCAS            :   IN THE SUPERIOR COURT OF
                                        :        PENNSYLVANIA
                                        :
              v.                        :
                                        :
                                        :
 PERRY AGIOVLASITIS                     :
                                        :
                   Appellant            :   No. 2448 EDA 2017

               Appeal from the Order Entered June 29, 2017
   In the Court of Common Pleas of Bucks County Civil Division at No(s):
                               2012-10690


BEFORE:    BENDER, P.J.E., PANELLA, J., and STEVENS*, P.J.E.
OPINION BY STEVENS, P.J.E.:                    FILED FEBRUARY 09, 2018
     Appellant Perry Agiovlasitis appeals from the Order entered in the Court

of Common Pleas of Bucks County on June 29, 2017, at which time the trial

court granted the Motion to Award Costs and Interest filed by Appellees Marc

Blucas and Ryan Blucas and Ordered the Prothonotary to enter judgment in

favor of Appellees and against Appellant in the principal amount of $8,550.00

along with costs in the amount of $225.00, prejudgment interest in the

amount of $2,191.18 and post-judgment interest at 6% per annum from

November 4, 2016, until the date upon which the judgment is fully satisfied.

Upon review, we vacate and reinstate the award of the arbitrators.

     The trial court aptly set forth the relevant factual and procedural

background herein as follows:

             On December 20, 2012, Appellees [ ] filed a Complaint
     initiating a landlord-tenant dispute against Appellant. Complaint,
     p. 1. Appellees entered into a lease agreement with Appellant to
____________________________________
* Former Justice specially assigned to the Superior Court.
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       lease the home located at 6630 Stump Road, Plumsteadville,
       Pennsylvania, from July 1, 2011, until June 30, 2012. Complaint,
       Exhibit A, lines 22-23. Pursuant to the terms of the Agreement,
       Appellees paid a security deposit and pet deposit equal in the
       amount of $10,000. Complaint, Exhibit A, line 44; Pet Addendum
       to Residential Lease, line 21. Appellees did not renew the lease at
       the end of the term and moved out of the home on June 30, 2012.
       Complaint, Exhibit B. Appellant did not return Appellees' security
       deposit. Complaint, Exhibit C. It is disputed whether Appellant
       neglected to provide a written list of damaged property within
       thirty days of the end of the lease term as required under the
       Lease Agreement. See Complaint, Exhibit A, lines 54-57; cf.
       Answer, Exhibit A.
              On February 12, 2013, Appellant filed an answer with new
       matter and counterclaim. Answer, p. 1. Appellant contended that
       Appellees damaged the leased premises and therefore breached
       the lease by failing to surrender the premises in substantially the
       same condition in which it was leased. Answer, Exhibit A.1
              The parties entered into arbitration[1] wherein Appellees' net
       award was $8,550 without mention of prejudgment interest or
       costs.2 See generally, Arbitration Award. Judgment was entered
____________________________________________


1 Appellee's complaint sought damages in the amount of $10,000.00 along
with prejudgment interest and “[s]uch other relief as the [c]ourt deems just
and equitable.” See Complaint at ¶ 22. Thus, this was a compulsory
arbitration pursuant to 42 Pa.C.S.A. § 7361(a) which provides as follows:

       (a)    General rule.—Except as provided in subsection (b), when
              prescribed by general rule or rule of court such civil matters
              or issues therein as shall be specified by rule shall first be
              submitted to and heard by a board of three members of the
              bar of the court.

       (b)    Limitations.—No matter shall be referred under subsection

              (a):
                     (1) which involves title to real property; or
                     (2) where the amount in controversy, exclusive of
                     interest and costs, exceeds $50,000.

42 Pa.C.S. § 7361(a), (b).




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       on November 4, 2016.[2] On November 14, 2016, Appellant wrote
       a check to Appellees in the amount of $8,550. Defendant's
       Response to Plaintiff's Motion for Costs and Prejudgment Interest,
       p. 1. The memo of the check stated that it was for "return of
       security deposit." Defendant's Response to Plaintiffs' Motion for
       Costs and Prejudgment Interest, Exhibits 1 and 2.
             Appellees sought pre-judgment interest totaling $2,191.18,
       post-judgment interest at 6% per annum ($1.41/day from
       November 4, 2016), and costs in the amount of $225.00. Brief in
       Support of Plaintiffs' Motion for Costs and Prejudgment Interest,
       pp. 2-3. The $225.00 was stipulated to by the parties. Stipulation.




____________________________________________


2     The arbitrators’ award and notice pursuant to Pa.R.C.P. 1307 was
entered on the docket on July 13, 2016. Specifically, the docket entry
states:
           Arbitration award in favor of [Appellees] in the sum of
          $10,000 for [Appellant] on the counter claim [sic] in the
          sum of $1450.00. Net award to [Appellees] is $8550.00
          EO DIE, Notice of Entry of Award mailed on 07/13/2016.

(unnecessary capitalization omitted).

      In addition, a docket entry for November 4, 2016, indicates “Judgment
on Award entered in favor of [Appellees] & against [Appellant] in the sum of
$8,500.00 Notice 236 sent on 11-4-2016.” (unnecessary capitalization
omitted).
       In Stivers Temporary Personnel, Inc. v. Brown, 789 A.2d 292
(Pa.Super. 2001), this Court noted:

       Upon entry of the compulsory arbitration award on the docket and
       appropriate notice, the award took the force and effect of a final
       judgment. This procedure differs substantially from statutory or
       common law arbitration, which provides that a party must petition
       the trial court to confirm the award thirty days or more following
       the date of the award. See 42 Pa.C.S.A. §§ 7313, 7342(b). As
       this case involves a compulsory arbitration award, neither party
       was required to praecipe the prothonotary to enter judgment on
       the award. See 42 Pa. C.S.A. § 7361(d).

Id. at 294.

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      _____
      1Specifically, Appellant alleged that Appellees badly damaged the
      wood floors, upstairs carpeting, failed to clean the home, among
      other things.
      2 Appellees were awarded $10,000 and Appellant was awarded

      $1,450 for the counterclaim.


Trial Court Opinion, filed 10/5/17, at 1-2.

      In his brief, Appellant presents the following issue for our review:

           Whether the lower court abused its discretion and/or
      committed a clear error of law by opening the judgment and
      modifying the arbitration award well outside the applicable time
      imposed by Pa. R.C.P. 1307(d).

Brief for Appellant at 2. In support of this claim, Appellant posits that:

             [t]he order in question, with just a few words and some
      simple math, not only rendered the arbitration hearing and
      unappealed award in this case meaningless, but also, and more
      importantly, undermined the entire compulsory arbitration
      process and disregarded our well-established jurisprudence and
      expectations as they pertain to the finality of judgments.
             Without any appeal having been taken by either party within
      thirty (30) days after entry of the arbitration award on July 13,
      2016, [Appellant], in strict accordance with all applicable rules of
      civil procedure, properly entered the Judgment upon it nearly four
      months later on November 4, 2016. Except for the $10.41 that
      had accrued since entry of the Judgment on November 4, 2016,
      [Appellant] tendered full payment of the arbitration award
      ($8,550.00) on November 14, 2016. The lower court had no right
      or authority to open the Judgment nearly 7 months later and
      modify the arbitration award to give [Appellees] an award of pre-
      judgment interest that the arbitration panel might or might not
      ha[ve] already given them in the award entered July 13, 2016
      from which neither party sought ay relief within 30 days of its
      entry.

Brief for Appellant at 6.

      Initially, we must consider whether the trial court had jurisdiction to

consider Appellees’ Motion for Costs and Prejudgment Interest. In its Opinion

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filed pursuant to Pa.R.A.P. 1925(a), the trial court recognizes that “[t]he

motion at issue on appeal was filed beyond the thirty-day period to appeal.”

Trial Court Opinion, filed 10/5/17, at 3 n. 4.       Nevertheless, without citation

to any authority, the court opines that the arbitration panel could not make a

ruling on prejudgment interest because such claim did not amount to a “claim

for relief” pursuant to Pa.R.C.P. 1306.3 The court asserts it was, therefore,

required to modify the arbitration award “with the compelling reason of

respecting Appellees rights” in light of this Court’s and the Pennsylvania

Supreme Court’s previous holdings that an award of prejudgment interest is

a matter of right. Id. at 4.       In support of its decision, the trial court relies

upon Thomas H. Ross, Inc. v. Seigfreid, 592 A.2d 1353 (Pa.Super. 1991),

wherein this Court held, inter alia, that the trial court did not have discretion

to suspend prejudgment interest from the close of a nonjury trial through the




____________________________________________


3   This rule provides:

        The board shall make an award promptly upon termination of the
        hearing. The award shall dispose of all claims for relief and shall
        be substantially in the form set forth in Rule 1312. If damages for
        delay are awarded under Rule 238, the amount shall be separately
        stated. The award shall be signed by the arbitrators or a majority
        of them. A dissenting vote without further comment may be noted
        thereon. The award shall be filed with the prothonotary
        immediately after it is signed.

Pa.R.C.P. 1306.


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date of final judgment, even where the two-year delay in the entry of

judgment was due to the court's own neglect in dealing with the case.

      In compulsory arbitration, the board of arbitrators conducts the
      hearing as a judge would conduct a trial without a jury, ruling on
      legal as well as factual matters. Conner v. DaimlerChrysler
      Corp., 820 A.2d 1266, 1269 (Pa.Super. 2003). Whether the harm
      sustained is capable of apportionment is a question of law.
      Capone v. Donovan, 332 Pa.Super. 185, 480 A.2d 1249, 1251
      (1984). Apportionment is a practical inquiry into the specific
      circumstances and depends on the unique context of each case.
      Glomb v. Glomb, 366 Pa.Super. 206, 530 A.2d 1362, 1365–66
      (1987) (en banc), appeal denied, 517 Pa. 623, 538 A.2d 876
      (1988). Allocation of liability among distinct causes is possible
      when the injured party suffers discrete harms or a reasonable
      basis exists to define the contribution of each cause to a single
      harm. Id. at 1365. Once the trier of law's decision to apportion
      liability is made, the trier of fact then decides how to allocate the
      fault. Voyles v. Corwin, 295 Pa.Super. 126, 441 A.2d 381, 383
      (1982).

Hairston v. Allen, 153 A.3d 999, 1002 (Pa.Super. 2016), reargument denied,

(Feb. 22, 2017), appeal denied, 170 A.3d 1028 (Pa. 2017).

      When a board of arbitrators issues its award and disposes of each claim

before it, its decision is final unless and until it is appealed. Connor v.

DaimlerChrysler Corp., 820 A.2d 1266, 1272 (Pa.Super. 2003). “If a party

is dissatisfied with a compulsory arbitration award, he has the right to appeal

for a trial de novo within thirty days. See 42 Pa.C.S.A. § 7361(d); Pa.R.C.P.

1308. If no appeal is filed within thirty days, the prothonotary, upon praecipe,




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shall enter judgment on the arbitration award as rendered. See Pa.R.C.P.

1307(c).” Hairston, supra at 1002.4

       In the instant case, the arbitration decision was rendered and entered

on the docket and the proper notices were mailed on July 13, 2016. Appellees

failed to file a petition with the Court of Common Pleas to vacate or modify

the arbitrator’s award within thirty days of that award. In fact, there is no

petition to vacate or modify the award in the certified record, for Appellees’

Motion for Costs and Prejudgment Interest cannot be confused with a timely

petition to vacate or modify the arbitration award pursuant. See Lowther v.

Roxborough Memorial Hospital, 738 A.2d 480, 485 n. 3 (Pa.Super. 1999).

       In Stivers this Court addressed the issue of whether the trial court had

jurisdiction to review the appellant's petition to vacate the arbitration award

which was filed fifty-eight days after the prothonotary had entered the

arbitration award on the docket and sent the required notice. Stivers, 789

A.2d at 295. In doing so, we opined:

              In compulsory arbitration, once an award is issued, it is sent
       to the prothonotary for entry on the docket and publication to the
       parties. Pa.R.C.P. 1306; 1307; 1308(a); 42 Pa.C.S.A. § 7361(d)
       (stating “In the absence of appeal the judgment entered on
       the award of the arbitrators shall be enforced as any other
       judgment of the court.”). Here, the arbitrators forwarded the
       award to the prothonotary on November 20, 2000, for entry on


____________________________________________


4 The Explanatory Comment accompanying Pa.R.C.P. 1307 stresses that “[i]f
the award is unintelligible or ambiguous or unclear or subject to alternative
interpretations, an aggrieved party can only appeal.” Id., Explanatory
Comment-1981 at ¶ 9.

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     the docket, and the prothonotary notified the parties of the award
     on the same day. See Pa R.C.P. 1307.
           Once entered, a compulsory arbitration award may only be
     challenged by a timely appeal to the Court of Common Pleas for a
     trial de novo. Pa.R.C.P. 1308(a); 42 Pa.C.S.A. § 7361(d).
     Pennsylvania Rule of Civil Procedure 1308(a) provides in pertinent
     part:

       (a) An appeal from an [arbitration] award shall be taken by
       (1) filing a notice of appeal in the form provided by Rule 1313
       with the prothonotary of the court in which the action is
       pending not later than thirty days after the day on which the
       prothonotary makes the notation on the docket that notice of
       the entry of the arbitration award has been provided as
       required by rule 1307(a)(3).

     Pa.R.C.P. 1308(a). This Court has stated:

       The procedure for taking an appeal from a compulsory
       arbitration award is clear. A party to a compulsory arbitration
       may take an appeal from the award by seeking a trial de novo
       in the Court of Common Pleas. 42 Pa.[C.S.] § 7361(d). Rule
       of Civil Procedure 1308(a) provides that an appeal from an
       arbitration award must be taken “not later than thirty
       days after the entry of the award on the docket....” The
       Explanatory Note to Pa.R.C.P. 1307 states:

         These Rules contemplate that the board will disperse
         after rendering the award, not to reconvene and not to
         hear any motions or applications to amend modify or
         change the award. If any party is dissatisfied with any
         aspect of the award, the sole remedy is an appeal for
         a trial de novo. (emphasis added)

       The rules provide only one exception to this procedure.
       Subsection (d) of Rule 1307 provides that the court of
       common pleas may mold an award where the record discloses
       obvious errors in either the mathematics or language of the
       award. The court's power to mold is specifically limited
       to correction of such patent errors and is the same as the
       power of a trial court to mold a jury verdict. Pa.R.C.P.
       1307(d). The rule is aimed at the corrections of formal
       errors that do not go to the substance and merits of
       the award.

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         Lough [v. Spring, 556 A.2d 441, 442–43 (Pa.Super. 1989)],
         (footnote omitted) (emphasis added). Additionally,

             Timeliness of an appeal, whether it is an appeal to an
             appellate court or a de novo appeal in common pleas
             court, is a jurisdictional question. Where a statute fixes
             the time within which an appeal may be taken, the time
             may not be extended as a matter of indulgence or grace.

         Lee v. Guerin, 735 A.2d 1280, 1281 (Pa.Super.1999), appeal
         denied, 561 Pa. 659, 747 A.2d 901 (1999).

Id. at 295-97 (some emphasis added; some citations omitted).

         As previously mentioned, the arbitrators’ award herein was entered on

the docket and notices were given pursuant to Pa.R.C.P. 1307 on July 13,

2016.      Neither party perfected an appeal for a trial de novo pursuant to

Pa.R.C.P. 1308(a); see also 42 Pa.C.S.A. § 7361(d). To the contrary, on

November 4, 2016, Appellant entered judgment on the award in favor of

Appellees and against himself in the amount of $8,550.00 and ten days later

tendered a check in that amount to Appellees as payment in full.

         Over five months later, on April 17, 2017, Appellees filed their Motion

for Costs and Prejudgment Interest wherein they did not request that the trial

court correct a typographical or mathematical error in the arbitration award;

rather, they asked the trial court to award them prejudgment interest and

costs.     In doing so, Appellees relied upon PNC Bank, N.A. v. Unknown

Heirs, 929 A.2d 219, 227 n. 3 (Pa.Super. 2007) for the proposition that a trial

court has the power to modify a judgment upon the proper application to the




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court for amendment.       5   However, as stated above, Appellees’ filing of their

untimely motion did not constitute compliance with the procedures applicable

to the filing of an appeal from an arbitration award and the requested relief

cannot be considered to be a “molding” thereof. See 42 Pa.C.S.A. § 7361(d);

Pa.R.C.P. 1307, 1308(a); Stivers, 789 A.2d at 295-97.

       Although it involved review of a common law arbitration award, this

Court’s prior decision in F.J. Busse Co., Inc. v. Sheila Zipporah, L.P., 879

A.2d 809 (Pa.Super. 2005) is instructive herein. In that case, the appellee

____________________________________________


5 We find the facts of PNC Bank, N.A. v. Unknown Heirs, which involved a
mortgage foreclosure action, to be distinguishable from those presented
herein. There, this Court found a trial court could modify an unappealed order
within thirty days after its entry under 42 Pa.C.S.A. § 5505 and had the
authority to open a judgment by default under applicable Pennsylvania Rules
of Civil Procedure. Specifically, we stated:

       it is well settled that “a court upon notice to the parties may
       modify or rescind any order within 30 days after its entry ... if no
       appeal from such an order has been taken or allowed.” 42
       Pa.C.S.A. § 5505. “Under section 5505, the trial court has broad
       discretion to modify or rescind an order, and this power may be
       exercised sua sponte or invoked pursuant to a party's motion for
       reconsideration.” Haines v. Jones, 830 A.2d 579, 584
       (Pa.Super.2003). “[T]he trial court may consider a motion for
       reconsideration only if the motion for reconsideration is filed
       within thirty days of the entry of the disputed order.” Id. “The
       mere filing of a motion for reconsideration, however, is insufficient
       to toll the appeal period.” Valley Forge Center Associates, 693
       A.2d at 245. “If the trial court fails to grant reconsideration
       expressly within the prescribed 30 days, it loses the power to act
       upon both the [motion] and the original order.” Id.

Id. at 226.




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filed a petition to modify the amount of an arbitrator’s award with the trial

court to include an additional award of counsel fees and costs.6 The appellee

contended that fees and expenses were mandatory under the Contractor

Payment Act because he had been the substantially prevailing party in the

action and the failure to award counsel fees pursuant thereto constituted a

procedural irregularity by the arbitrators.

       The trial court agreed that the award of counsel fees and expenses was

mandatory and entered an order directing the arbitrators to determine the

amount of counsel fees due to the appellees. The trial court then stayed all

proceedings pending an appeal wherein the appellant argued that the

arbitrators' failure to award counsel fees did not constitute an irregularity

under Pennsylvania law which would require the vacating or modification of

the arbitration award. Instead, the appellant contended the arbitrators' failure

to award counsel fees and expenses was merely an error of law on their part

and, thus, did not form a basis for modifying the common law arbitration

award. Id. at 810-12.

       This Court agreed and in doing so reasoned as follows:

       [T]his claim is actually a contention that the arbitrators made an
       error of law by ignoring the relevant provision of the Contractor
       Payment Act. As set forth above, a common law arbitration award
       is not reviewable for an error of law. Therefore, regardless of
       whether the arbitrators committed an error of law, the arbitrator's
       award cannot be vacated on this basis.
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6The timeliness of the petition was not discussed as part of the factual and
procedural history.

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                                      ***
      Here, although appellee claims that there was an irregularity in
      the process employed by the arbitrators, his allegations in fact
      assert that the arbitrators made an error of law by not awarding
      attorney's fees under the Contractor Payment Act. As we
      previously indicated, an error of law by the arbitrators is not a
      basis upon which a trial court, which is reviewing an arbitration
      decision, may modify that decision. Thus, . . . we conclude that
      the trial court in the present case abused its discretion in ordering
      modification of the arbitrator's decision. Accordingly, we must
      reverse the Order on appeal and reinstate the award of the
      arbitrators.

Id. at 812 (citations omitted).

      Presently, the panel of arbitrators made no specific findings of fact or

conclusions of law; however, its award indicates it believed aspects of both

parties’ arguments, as neither party received the entire amount of damages

that it had requested. In addition, although claims for prejudgment interest

and costs had been presented to the arbitrators, the arbitration award in favor

of Appellees was unclear as to whether it included a portion of the security

and pet deposits along with prejudgment interest and costs or was comprised

of the security and pet deposits alone. Thus, in light of the foregoing, we

conclude that because Appellee did not file a timely appeal from the

arbitrator’s award, the trial court was without authority to revisit the issue of

prejudgment interest.     See Hairston, supra, at 1004. The arbitrators’

decision was final and the subsequent judgment on the award was entered

correctly and should not be disturbed. Id.




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     Accordingly, the trial court lacked jurisdiction to consider Appellees’

Motion for Costs and Prejudgment Interest. Therefore, we reverse and vacate

its June 29, 2017, Order, reinstate the arbitrator’s award entered on July 13,

2016, and direct the parties to comply therewith.

     Order vacated. Arbitrator’s award reinstated. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/9/18




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