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SANDRA M. TURNER v. MAY CORPORATION (03/13/81)

SUPERIOR COURT OF PENNSYLVANIA


filed: March 13, 1981.

SANDRA M. TURNER
v.
THE MAY CORPORATION, T/D/B/A KAUFMANN'S DEPARTMENT STORE, APPELLANT

No. 80 Pittsburgh, 1980, Appeal from the Order of the Court of Common Pleas of Allegheny County, Civil Division, at No. 7126 of 1979.

COUNSEL

Robert G. Simasek, Pittsburgh, for appellant.

Max A. Levine, Pittsburgh, for appellee.

Spaeth, Johnson and Popovich, JJ.

Author: Popovich

[ 285 Pa. Super. Page 244]

This is an appeal from an Order denying appellant's Motion to Quash appellee's appeal from an arbitration panel's award.

On November 8, 1979, a panel of arbitrators heard the appellee's Complaint in Trespass and issued an award in favor of appellant. On December 7, 1979, the appellee filed an appeal to the Court of Common Pleas of Allegheny County requesting a trial de novo. Appellant, thereafter, filed a Motion to Quash the appeal on the grounds that it was untimely, having been filed more than twenty days after the entry of the arbitrators' award.*fn1 The lower court, per Judge R. Stanton Wettick, denied the appellant's Motion on December 28, 1979. We agree and, accordingly, affirm the lower court's Order.

[ 285 Pa. Super. Page 245]

Before discussing the merits of appellant's claim, we must determine whether the Order appealed from here is final. Although neither party has specifically questioned the jurisdiction of this Court on this matter,*fn2 the mere agreement of the parties will not vest jurisdiction where it otherwise should not be. T.C.R. Realty, Inc. v. Cox, 472 Pa. 331, 372 A.2d 721 (1977). On this subject, our Supreme Court in T.C.R. Realty, supra, stated:

"It is fundamental law in this Commonwealth that an appeal will lie only from final orders, unless otherwise expressly permitted by statute. In ascertaining what is a 'final order,' we have looked beyond the technical effect of the adjudication to its practical ramifications. We have variously defined a final order as one which ends the litigation, or alternatively disposes of the entire case. Conversely phrased, an order is interlocutory and not final unless it effectively puts the litigant 'out of court.' [Also,] . . . an order is not interlocutory if it precludes a party from presenting the merits of his claim to the lower court." Id., 472 Pa. at 337, 372 A.2d at 724. (Citations omitted)

Absent a specific statutory provision authorizing the instant appeal, it is clear that it is interlocutory. A litigant who has had denied a motion to quash an appeal from the award of a board of arbitrators is not "out of court;" he may still proceed on the merits in the court below. See Pugar v. Greco, 483 Pa. 68, 394 A.2d 542 (1978); T.C.R. Realty, supra; Lower Paxton Township v. Fieseler Neon Signs, 37 Pa. Commw. 506, 391 A.2d 720 (1978). However, the lower court's ruling on the timeliness of the appeal constituted a ruling on the subject matter jurisdiction. See, e. g., James F. Oakley, Inc. v. School District of Philadelphia, 464 Pa. 330, 346 A.2d 765 (1975) (statutory requirements for

[ 285 Pa. Super. Page 246]

    the perfecting of an appeal from the award of arbitrators are jurisdictional); Commonwealth v. Molyneaux, 277 Pa. Super. 264, 419 A.2d 763 (1980) (timeliness of an appeal is a jurisdictional question); Drozdowski v. Keystone Truck Leasing, 277 Pa. Super. 55, 419 A.2d 657 (1980) (SPAETH, J.) (statutory requirements for perfecting an appeal from a board of arbitrators are jurisdictional); Commonwealth v. Dorman, 272 Pa. Super. 149, 414 A.2d 713 (1979) (same); see also Department of Transportation, Bureau of Traffic Safety v. Bower, 48 Pa. Commw. 379, 410 A.2d 91 (1980); Board of Public Education of the School District of Pittsburgh v. Goldstein, 43 Pa. Commw. 643, 403 A.2d 176 (1979). As such, the "trial court's ruling on a preliminary objection raising the question of jurisdiction, although interlocutory, is subject to the Act of March 5, 1925, P.L. 23, § 1, 12 P.S. § 672, repealed, Act of April 28, 1978, P.L. 202, § 2(a)[1069] (effective June 27, 1980), which provides for an immediate appeal of such rulings."*fn3 Visscher v. O'Brien, 274 Pa. Super. 375, 381, 418 A.2d 454, 457 (1980). Thus, we find that the Order of the court below is appealable.

The issue to be resolved by this Court is the determination of exactly which statute of limitations governs the appeal provision found in Section 7361, the Act of July 9, 1976, P.L. 586, No. 142, § 2, effective June 27, 1978; 42 Pa.C.S.A. § 7361 (Pamphlet, 1980). The statute reads as follows:

"§ 7361. Compulsory arbitration

(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.

[ 285 Pa. Super. Page 247]

(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:

(i) $10,000 in judicial districts embracing first, second, second class A or third class counties; or

(ii) $5,000 in any other judicial district.

(c) Procedure. -- The arbitrators appointed pursuant to this section shall have such powers and shall proceed in such manner as shall be prescribed by general rules.

(d) Appeal. -- Any party to a matter shall have a right to appeal to and to a trial de novo in the court upon payment of such amount or proportion of fees and costs within such time as shall be prescribed by general rule and upon compliance with such other procedures as shall be prescribed by general rules. In the absence of appeal the judgment entered on the award of the arbitrators shall be enforced as any other judgment of the court."

It is appellee's contention that Section 5571(b) of the Act of July 9, 1976, P.L. 586, No. 142, § 2, as amended, the Act of April 28, 1978, P.L. 202, No. 53, § 10(67), effective June 27, 1978; 42 Pa.C.S.A. § 5571(b) (Pamphlet, 1980), controls. Section 5571 provides in pertinent part:

"§ 5571. Appeals generally

(a) General rule. -- The time for filing an appeal, a petition for allowance of appeal, a petition for permission to appeal or a petition for review of a quasi-judicial order, in the Supreme Court, the Superior Court or the Commonwealth Court shall be governed by general rules. No other provision of this subchapter shall be applicable to matters subject to this subsection.

(b) Other courts. -- Except as otherwise provided in subsections (a) and (c) [which relates to exceptions not herein applicable], an appeal from a tribunal or other government unit to a court or from a court to an appellate court shall be commenced within 30 days after the entry of the

[ 285 Pa. Super. Page 248]

    order from which the appeal is taken, in the case of an interlocutory or final order."

The appellant, on the other hand, asserts that the appeal, having been filed on the twenty-ninth day after the arbitrators' award, contravened the Act of June 16, 1836, P.L. 715, § 27, as amended, 5 P.S. § 71.*fn4 The Act of 1836, as amended, reads in relevant part:

"§ 71. Parties may appeal

Either party may appeal from an award of arbitrators, to the court in which the cause was pending at the time

[ 285 Pa. Super. Page 249]

    the rule or agreement of reference was entered, under the following rules, regulations, restrictions, viz.:

IV. Such appeal shall be entered . . . within twenty days after the day of the entry of the award of the arbitrators on the docket.

V. . . . All appeals shall be de novo."

Upon an initial review of Section 7361, one observes that the Legislature failed to specify the time within which an appeal had to be taken therefrom. Given this ambiguity,*fn5 the Court considers the issue to be one of statutory construction, and, in such circumstances, the function of a reviewing court "is to ascertain and effectuate the intention of the General Assembly." The Statutory Construction Act, Act of December 6, 1972, P.L. 1339, No. 290, § 3; 1 Pa.C.S.A. § 1921(a) (Supp. 1964-79). As that applies to the facts here, our task is to determine if the Legislature intended the 30-day period provided for in Section 5571(b) to govern the appeal provision in Section 7361. On this point, "[o]ur rules of statutory construction provide that when statutes or parts of statutes relate to the same persons or things or to the same class of person or things they are in pari materia and should be 'construed together, if possible, as one statute.' Act of 1970, November 25, P.L. 707, No. 230, added 1972, Dec. 6, P.L. 1339, No. 290 § 3, 1 Pa.C.S.A. § 1932 (Supp. 1977-78)." City of York v. Reihart, 475 Pa. 151, 156, 379 A.2d 1328, 1330 (1977). More particularly:

"To be in pari materia, statutes need not have been enacted simultaneously or refer to one another. However,

[ 285 Pa. Super. Page 250]

Alignment of the facts against the aforesaid standard reveals that Sections 5571 and 7361 were enacted on July 9, 1976, during the 160th Session of the General Assembly, and both provisions became effective on June 27, 1978. Further, the two Sections, in the Court's opinion, serve the same purpose, i. e., the preservation of one's "right to appeal." The language of the Sections bears this out, in Section 7361(d) it is labeled a "right to appeal to and to a trial de novo in the court," and in Section 5571(b) it is worded "an appeal from a tribunal or other government unit to a court or from a court to an appellate court."*fn6

[ 285 Pa. Super. Page 252]

After considering the identity of purpose of the two Sections, their simultaneous enactment and the fact that the ambiguity in Section 7361(d) can be clarified by reference to the provisions of Section 5571(b), it is the opinion of this Court that the reference in Section 7361(d) to an "appeal" should be read in conjunction with the time prescribed for the taking of an "appeal" in Section 5571(b). This conclusion comports with Lewis v. Erie Insurance Exchange, 281 Pa. Super. 193, 421 A.2d 1214 (1980), which is the only case to date touching on the issue at hand. Thus, inasmuch as the most contemporaneous, practical and conclusive interpretation of a statute is to be garnered from that given to it by the courts of the state,*fn7 2A Sutherland, Statutory Construction § 49.05 (4th Ed. 1973), citing Harry C. Erb, Inc. v. Shell Construction Co., 206 Pa. Super. 388, 213 A.2d 383 (1965), the Court considers Lewis instructive. In Lewis the Court ruled that, inter alia, a petition to vacate an arbitration award filed thirty-one days after its issuance was not untimely, since the action came within the purview of the Uniform Arbitration Act, Act of April 25, 1927, P.L. 381, No. 248, § 13, 5 P.S. § 173, which prescribed an appeal time of three months, and was not controlled by the thirty day period provided for in Section 5571.

It is of no moment that the Lewis Court sustained the appellant's petition to vacate the award on the ground that Section 5571 did not control the dispute. Rather, what is to be gleaned therefrom is the rationale utilized by the Court in reaching its decision, viz. :

[ 285 Pa. Super. Page 253]

"Section 5571 of the Judicial Code specifies that 'an appeal from a tribunal or other government unit to a court . . . shall be commenced within 30 days after the entry of the order from which the appeal is taken . . .' 42 Pa.C.S. § 5571(b). Although in common usage the term 'tribunal' would encompass all boards of arbitration, the Judicial Code explicitly limits the scope of this term to '[a] court, district justice or other judicial officer vested with the power to enter an order in a matter. The term includes a government unit, other than the General Assembly and its officers and agencies, when performing quasi-judicial functions.' 42 Pa.C.S. § 102. Further delving into the definition section of the Judicial Code reveals that the term 'judicial officer' includes only judges, district justices and appointive judicial officers. Although 'appointive judicial officers' is defined by the Judicial Code to include arbitrators, that term by its very wording excludes arbitrators sitting to decide a controversy that has been voluntarily submitted for settlement by arbitration. Act of April 25, 1927, P.L. 381, No. 248, § 4, 5 P.S. § 164. In those circumstances, the arbitrators are selected by the parties, and are not appointed by personnel from within the unified judicial system.*fn7a

The Court determines that the preceding rationale is germane to the instant case. By commencing with the term "tribunal" in Section 5571(b) and tracing it through the definitional section of the Judicial Code, 42 Pa.C.S.A. § 102 (Pamphlet, 1980) (e. g., a reading of the term "tribunal" reveals that it embraces a "judicial officer," which in turn is defined to encompass an "appointive judicial officer;" since arbitrators chosen to hear compulsory arbitration cases come within the ambit of "appointive judicial officer,") one ends

[ 285 Pa. Super. Page 254]

    up logically in Section 7361(d) the provision dealing with compulsory arbitration. Lewis v. Erie Insurance Exchange, supra; see also lower court's opinion, at 3-4. Consequently, based on a reading of the Sections in pari materia and the supportive case law, the Court affirms the lower court's Order.


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