         IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Gilbert M. Martinez,                  :
                                      :
                         Appellant    :
                                      :
                   v.                 : No. 2047 C.D. 2016
                                      : Submitted: April 21, 2017
Reading Area Water Authority          :



OPINION NOT REPORTED

MEMORANDUM OPINION
PER CURIAM                                           FILED: August 30, 2017



            Gilbert M. Martinez (Martinez) appeals, pro se, from the December 8,
2016 entry of judgment in the Court of Common Pleas of Berks County (trial
court) on a November 7, 2016 arbitration award in the amount of $2,189.39 in
favor of Reading Area Water Authority (Authority).
            Martinez filed a complaint against the Authority on June 10, 2014,
alleging, inter alia, that the Authority violated various statutory provisions with
respect to the provision of his water service. He filed an amended complaint on
July 21, 2014, seeking monetary damages and injunctive relief. The Authority
filed an answer and counterclaim in the amount of $865.57. At the time, Martinez
was represented by counsel.
            Martinez proceeded pro se beginning in October 2014. On November
7, 2014, the trial court granted his application for injunctive relief, ordered the
Authority to supply water to his residence, and required Martinez to file a bond and
make regular monthly payments including the cost of water usage. Following an
evidentiary hearing, the trial court denied Martinez’s “Motion for leave to amend
the Complaint and objection for Arbitration” by order dated December 23, 2014.
                On April 10, 2015, the trial court certified the case as ready for
arbitration pursuant to Berks County Rule of Civil Procedure (B.R.C.P.) 13011 and
scheduled an arbitration hearing for June 11, 2015. The matter was rescheduled
twice,2 and, by order dated October 13, 2016, the trial court scheduled arbitration
for November 7, 2016. Copies of this order were served to the Authority and
Martinez’s counsel of record, who had not then formally withdrawn as counsel.
                Martinez did not appear at the arbitration hearing, and the panel
awarded the Authority $2,189.39 for charges related to Martinez’s water service
and litigation costs. The award was entered on the docket on November 7, 2016.3
On November 25, 2016, Martinez filed a pro se, ex parte motion to show cause,
seeking to have the arbitration award vacated on the grounds that he had not
received notice of the November 7th arbitration hearing. The trial court denied the
motion on December 2, 2016, and judgment was entered on the award on
December 8, 2016. Pa. R.C.P. No. 1307(c) (providing that the prothonotary on
praecipe shall enter judgment on the award if no appeal is taken within thirty days
after entry of the award).


       1
         B.R.C.P. 1301 provides for compulsory arbitration of all civil actions where the amount
in controversy shall be $50,000 or less. See Section 7361 of the Judicial Code, 42 Pa. C.S.
§7361 (compulsory arbitration).
       2
          Martinez filed appeals to this Court from each of the trial court’s orders scheduling
arbitration. We dismissed the first appeal pursuant to Pa. R.A.P. 1925 by order dated August 3,
2015, and quashed the second appeal as interlocutory on June 14, 2016.

       3
           B.R.C.P. 1306; Pa. R.C.P. Nos. 1306, 1307.


                                                2
                 On December 19, 2016, Martinez filed a pro se Notice of Appeal in
this Court from the December 8, 2016 entry of judgment.4 On appeal, Martinez
argues that: (1) the trial court lacked authority to order arbitration; (2) the trial
court abused its discretion by denying his motion to amend his complaint; and (3)
the arbitration award cannot stand because he did not receive proper notice.5 We
do not reach the merits of these arguments, however, because we are constrained to
quash the appeal as untimely.
                 B.R.C.P. 1308(a) (emphasis added), states that “[a]ny party may
appeal from an award of arbitrators within such time after the entry of the award
and upon compliance with the requirements of Pa. R.C.P. [Nos.] 1308 through
1311.” Pa. R.C.P. No. 1038(a) provides that an appeal from an arbitration award
shall be filed “not later than thirty days after the day on which the prothonotary
makes the notation on the docket that notice of entry of the arbitration award has
been provided . . . .”6

       4
           On January 23, 2017, Attorney J. Palmer Lockard, II, filed a petition in the trial court to
withdraw his appearance, which the trial court granted. The petition to withdraw alleged that:
after filing a complaint and amended complaint on Martinez’s behalf, Attorney Lockard advised
Martinez on October 1, 2014, that he and the Widener Law Clinic could no longer represent him;
Martinez contacted the Widener Law Clinic of January 6, 2017, requesting that Attorney
Lockard formally withdraw his appearance in this matter; and Martinez is not opposed to such
withdrawal.

       5
         Martinez complains that he did not receive notice of the arbitration hearing because it
was sent to his counsel and not to his home address. Although Martinez had proceeded pro se
for some time, notice was properly mailed to his counsel of record. B.R.C.P. 1303.1; Pa. R.C.P.
No. 440(a)(1)(i).
       6
           In its entirety, Pa. R.C.P. No. 1308 states as follows:

                 Rule 1308. Appeal. Arbitrator’s Compensation. Notice

                 (a) An appeal from an award shall be taken by
(Footnote continued on next page…)
                                                   3
              In Criss v. Wise, 781 A.2d 1156, 1159 (Pa. 2001), our Supreme Court
emphasized that a party must strictly adhere to applicable statutory provisions in
order to perfect an appeal. In that case, an arbitration panel entered an award in the
appellants’ favor on November 25, 1998, and that same day the prothonotary noted
the entry of the award and notice to the parties on the docket. An employee at the
law firm of appellee’s counsel deposited the notice of appeal in a U.S. Postal
Service mailbox at approximately 5:00 p.m. on December 22, 1998. The time for
filing a notice of appeal from the arbitration award expired on December 28, 1998,
Pa. R.C.P. No. 1308, and the prothonotary had not received the appellee’s notice of

(continued…)

               (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 entry of the award on the docket
              that notice of entry of the arbitration award has been provided as
              required by Rule 1307(a)(3), and

               (2) payment to the prothonotary of the compensation of the
              arbitrators not exceeding fifty percent of the amount in
              controversy, which shall not be taxed as costs or be recoverable in
              any proceeding;

              provided that the court, in an appropriate case, upon petition may
              permit the appellant to proceed in forma pauperis.

              (b) The appellant shall provide the prothonotary with the required
              notice for mailing and properly stamped and addressed envelopes.
              The prothonotary shall give notice to each other party of the taking
              of the appeal. Failure to give the notice shall not invalidate the
              appeal.

              (c) The appellant shall not be required to post any bond,
              recognizance or other security or to pay any record costs which
              have accrued in the action. All record costs shall abide the event.

Pa. R.C.P. No. 1308 (emphasis added).


                                               4
appeal. On December 29, 1998, the appellants filed a praecipe to enter judgment
against the appellee and the prothonotary entered a judgment on the arbitration
award on that date. The next day, the prothonotary received the appellee’s notice
of appeal, but because the time for filing had expired, the prothonotary returned the
notice of appeal to the appellee.
             The appellee filed a motion for leave to appeal nunc pro tunc,
contending that she filed the notice of appeal on December 22, 1998, which, she
contended, allowed sufficient time for the notice to be delivered to the
prothonotary by December 28, 1998. The appellee argued that she should not be
precluded from appealing the arbitration award because of the unreasonable delay
of the mail service. The trial court denied the motion, but the Superior Court
vacated the trial court’s order and remanded the matter to the trial court for
additional findings.
             On further appeal, our Supreme Court reversed.          The court first
explained:

             In order to perfect an appeal, parties must strictly adhere
             to the statutory provisions for filing an appeal. See
             Sellers v. Workers’ Comp. Appeal Bd. (HMT
             Construction Services), [713 A.2d 87, 89] (Pa. 1998);
             Oakley v. School Dist. of Philadelphia, [346 A.2d 765,
             767] (Pa. 1975). Pennsylvania Rule of Civil Procedure
             1308 states that a notice of appeal must be ‘filed with the
             prothonotary’ of the court where the action is pending
             within thirty days from the date that the prothonotary
             notes on the docket that the judgment on the arbitration
             award has been entered and the parties have been notified
             of that judgment. Pa. R.C.P. [No.] 1308. Unlike the
             Rules of Appellate Procedure, which in certain instances
             specify that filings can be deemed filed on the date they
             are deposited in the U.S. Mail, the Pennsylvania Rules of
             Civil Procedure do not so provide. In fact, Rule of Civil
             Procedure 205.1 specifically provides that ‘[a] paper sent
                                         5
              by mail shall not be deemed filed until received by the
              appropriate officer.’ Pa. R.C.P. [No.] 205.1. Moreover,
              appellate courts do not have the authority to enlarge the
              time for filing a notice of appeal. Pa. R.A.P. 105.
              Therefore, as Rule 1308 now stands, for an appeal from
              an arbitration award to be deemed timely filed, the
              prothonotary of the court where the action is pending
              must receive a notice of appeal within thirty days from
              the date the prothonotary notes on the docket that the
              arbitration award has been entered and the parties have
              been notified of the award.

781 A.2d at 1159 (emphasis in original). The court recognized that a court may
allow a party to file an appeal nunc pro tunc in extraordinary circumstances but
concluded that the appellee’s failure to anticipate a potential delay in the mail was
not the type of non-negligent circumstance for which an appeal nunc pro tunc may
be granted.
              In Hines v. Southeastern Pennsylvania Transportation Authority, 607
A.2d 301 (Pa. Cmwlth. 1992), following an unfavorable arbitration award,
docketed July 5, 1988, the appellant filed a Demand for Jury Trial and a praecipe
to proceed in forma pauperis on July 27, 1988.               The trial court granted the
appellee’s motion to quash on the ground that the appellant failed to comply with
the requirements of Pa. R.C.P. No. 1308. We rejected the appellant’s argument
that her appeal should be reinstated because she made a good faith effort and
substantially complied with the Rules of Civil Procedure in filing her appeal.
Relying on James F. Oakley, Inc. v. School District of Philadelphia, 346 A.2d 765
(Pa. 1975),7 we held that the plain language of Rule 1308, “[a]n appeal from an


       7
         In James F. Oakley, Inc., the Supreme Court held that the word “shall” in the statute
allowing de novo appeal from arbitration awards must be construed as mandatory in every
provision. 346 A.2d at 767.


                                              6
award shall be taken by . . . filing a notice of appeal in the form provided by Rule
1313 . . . not later than thirty days after the entry of the award on the docket,” is
mandatory. 607 A.2d at 303-04. We next observed that the mandatory statutory
requirements for perfecting are jurisdictional. 607 A.2d at 304. Thus, we held that
the appellant in Hines failed to perfect her appeal, and we affirmed the trial court’s
order quashing her appeal for failure to comply with Rule 1308.
                 Our decision in Hines compels the same result here. In this case,
Martinez’s failure to file an appeal within thirty days of the entry of the November
7, 2016 arbitration award as required by Rule 1308 deprives this Court of
jurisdiction.8
                 Accordingly, the appeal must be quashed.




       8
         It is well settled that the issue of subject matter jurisdiction cannot be waived and may
be raised at any time by the parties or by the court sua sponte. Borough of Gettysburg v.
Teamsters Local No. 776, 103 A.3d 389, 397 (Pa. Cmwlth. 2014); Housing Authority of
Pittsburgh v. Van Osdol, 40 A.3d 209, 213 (Pa. Cmwlth. 2012).


                                                7
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Gilbert M. Martinez,                  :
                                      :
                         Appellant    :
                                      :
                  v.                  : No. 2047 C.D. 2016
                                      :
Reading Area Water Authority          :



PER CURIAM
                                     ORDER


            AND NOW, this 30th day of August, 2017, the appeal of Gilbert M.
Martinez in the above-captioned matter is quashed.
