J-A05002-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

ERIE INSURANCE EXCHANGE                           IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA


                       v.

MICHAEL BRISTOL AND RCC, INC.

APPEAL OF: MICHAEL BRISTOL

                                                      No. 1119 EDA 2015


                      Appeal from the Order March 20, 2015
              In the Court of Common Pleas of Montgomery County
                       Civil Division at No(s): 2013-12947


BEFORE: OLSON, J., OTT, J., and STEVENS, P.J.E.*

CONCURRING MEMORANDUM BY OTT, J.:                        FILED MAY 27, 2016

        I agree with the holding announced by the learned majority in this

decision.    However, I believe the language addressing the tolling of the

statute of limitations found in Hopkins v. Erie Ins. Co., 65 A.3d 452 (Pa.

Super. 2013) is dicta.         Accordingly, I would clarify prior case law and

formally announce the requirements for tolling the statute of limitations

regarding uninsured motorist arbitration matters.

        While the rules for determining the commencement of the statute of

limitations for an uninsured motorist claim are well settled,1 less has been

____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
    See Boyle v. State Farm, 456 A.2d 156 (Pa. Super. 1983).
J-A05002-16



authoritatively written regarding the tolling of the statute of limitations. As

early as 1983, our Court has stated that filing a petition to appoint

arbitrators and compel arbitration will toll the statute of limitations, see

Boyle, 456 A.2d at 162-63, yet there has been no holding that this method

is the ONLY method of tolling the statute of limitations. I would so hold, and

so alleviate the confusion that led to this appeal.

      The statute of limitations is a bright line rule that expressly limits the

time allowed for a claimant to commence an action.        When that action is

filed in the court of common pleas, the claimant is required to initiate a

lawsuit, either by filing a writ of summons or complaint with the court.

While arbitration allows for a more relaxed and less costly method of

determining the facts and resolving a dispute, it does not follow that

requirements for tolling the statute of limitations need also be relaxed.

      As noted, Boyle, supra, stated that filing a petition to appoint

arbitrators and compel arbitration acted to toll the statute of limitations.

However, Boyle did not hold that filing such a petition was the only method

to toll the statute.   Moreover, tolling the statute of limitations was not at

issue, so the statement regarding filing the petition to appoint and compel

was dicta, not holding. Statements in subsequent cases regarding the filing

of a petition to appoint and compel are all dicta.

Following Boyle, Seay v. Prudential Property and Cas. Ins. Co., 543

A.2d 1166 (Pa. Super. 1988), Hopkins v. Erie Ins. Co., 65 A.3d 452 (Pa.

Super. 2013), Wheeler v. Nationwide Mut. Ins. Co., 749 F.Supp. 660

                                      -2-
J-A05002-16



(E.D.Pa. 1990), Walker v. Providence Ins. Co., No. CA 97-7455, 1998 WL

195652 (E.D.Pa. 1998), Motorist Mut. Ins. Co. v. Durney, No. CA 04-

3232, 2005 WL 3470612 (E.D.Pa. 2005) (abrogated on other grounds), and

Liberty Mutual Fire Ins. Co. v. Weisbaum, No. CA 10-3869 2011 WL

4632479 (E.D.Pa. 2011), have ALL stated, in dicta, that the petition to

appoint and compel is the act that tolls the statute of limitations.

      On the other hand, no case law has indicated the mere appointment of

an arbitrator by either or both parties is sufficient to toll the statute of

limitations. Unsurprisingly, Bristol has cited no case to support his assertion

that negotiations with Erie and the initial appointment of an arbitrator were

sufficient to toll the statute of limitations. In fact, both Walker, supra, and

Weisbaum,      supra,    expressly    stated    such   action   was    insufficient.

Therefore, I believe the great weight of authority equates the petition to

appoint a neutral arbitrator and compel arbitrations as the functional

equivalent of filing either a writ of summons or complaint.        Accordingly, I

would expressly hold that a claimant in an uninsured motorist action,

seeking arbitration, must file a petition to appoint arbitrator and compel

arbitration in order to toll the statute of limitations in such an action.

      Clarifying this requirement and setting forth a bright line rule of what

is needed to toll the statute of limitations, would also alleviate the concern

stated by the majority in footnote 4.          The bright line rule would put a

claimant on notice of what must be done and by when in order to protect the

claim, and simply puts the UM arbitration hearing on par with the

                                       -3-
J-A05002-16



requirements to file an action at law regarding tolling of the statute of

limitations. The concerns cited by the majority in footnote 4, such as insurer

delay, would therefore have little, if any, effect on the duties of the claimant.




                                      -4-
