statute of limitations in Pennsylvania for actions to vacate arbitration awards was three months under the Pennsylvania Uniform Arbitration Act, 5 Pa.Stat.Ann. § 173 (Purdon 1963) (repealed).
On October 5, 1980, however, the Pennsylvania General Arbitration Act was repealed and replaced, in relevant part, by Pennsylvania's enactment of the Uniform Arbitration Act, 42 Pa.Cons.Stat.Ann. §§ 7301-7362 (West 1981). The statutory scheme set forth in Pennsylvania's Uniform Arbitration Act provides that all arbitration agreements shall be conclusively presumed to be agreements to arbitrate pursuant to 42 Pa.Cons.Stat.Ann. § 7341, the subchapter relating to common law arbitrations, unless the parties agree in writing to arbitrate pursuant to the Uniform Arbitration Act or a similar statute. 42 Pa.Cons.Stat.Ann. § 7302(a). Here, the parties did not agree to statutory arbitration. Therefore, their agreement is one to arbitrate pursuant to the subchapter relating to common law arbitration. The new Act, which became effective on December 5, 1980, reduced the limitations period on actions to vacate statutory arbitration awards to thirty days, computed from the time a copy of the award is delivered to complainant.
There is no express comparable provision in the subchapter relating to common law arbitration. The thirty day limitations is, therefore, not directly applicable to common law arbitrations. Under the Hoosier Cardinal doctrine, I must apply the "appropriate" state statute of limitations. I find the thirty day limitations period for statutory arbitrations to be the most appropriate statute of limitations for the following reasons: (1) The former three month statute of limitations, 5 P.S. § 173, which applied to common law arbitrations was specifically repealed on October 5, 1980 (effective in sixty days). (2) In place of the old Arbitration Act, the Pennsylvania legislature enacted the new Uniform Arbitration Act on October 5, 1980 (effective in sixty days). The thirty day limitations period for statutory arbitrations is the only limitations period for motions to vacate set forth in the new Act. (3) While the Pennsylvania Supreme Court has not addressed the issue as to what limitations period should be applied to common law arbitrations, I find that the thirty day period can be appropriately applied to motions to vacate common law arbitration awards, since it is the most closely analogous statute.
Moreover, I do not find it inconsistent with the federal policy favoring rapid disposition of labor disputes.
The uncontradicted facts establish that this thirty day statute of limitations was effective prior to plaintiff's receipt of the arbitrator's decision and prior to commencement of plaintiff's suit to vacate the arbitration award. (Affidavit of Margaret A. Browning, paragraphs 2-4). Thus, unless the new thirty day statute of limitations would contravene some federal policy, it applies to plaintiff's action to vacate.
I find that this limitations period in no way contravenes "those consensual processes that federal labor law is chiefly designed to promote-the formation of the collective bargaining agreement and the private settlement of disputes under it." Hoosier Cardinal, 383 U.S. at 702-03, 86 S. Ct. at 1111. The shorter limitations period encourages finality in the disposition of disputes through the arbitration process and manifestly serves the general federal policy of resolving labor disputes promptly. See Hoosier Cardinal, 383 U.S. at 707, 86 S. Ct. at 1114; United Parcel Service, Inc. v. Mitchell, 451 U.S. at 63, 101 S. Ct. at 1564.
By way of dictum, Hoosier Cardinal suggests that the trial court should also consider whether a state's limitations period is unusually short. Hoosier Cardinal, 383 U.S. at 707 n.9, 86 S. Ct. at 1114 n.9.
In essence, plaintiff's action to vacate constitutes an appeal from the arbitrator's award. Appeals are typically governed by relatively short limitation periods, given the interest in finalizing judgments. See, e.g., Fed.R.App.Pro. 4(a)(1) (appeal as of right must be within thirty days of entry of judgment or order); E.D.Pa.R.Civ.Pro. 8(7) (trial de novo must be demanded within twenty days of filing of arbitration award).
This interest in finality is particularly important in § 301 actions to vacate arbitration awards, where federal labor law policies encourage prompt and final resolution of disputes through the arbitration process. See Office Center Services, -- - F.2d at -- . ("The policy of quickly resolving (labor) disputes ... favors a short limitations period for such challenges." Id.) Thus, I find that the thirty day statute is not unusually short under the circumstances of this case. See Atlantic Richfield Company v. Atlantic Independent Union, 537 F. Supp. 371 (E.D.Pa. 1982) (applying 30 day statute of limitations to § 301 action to vacate arbitration award); De Lorto v. United Parcel Service, Inc., 401 F. Supp. 408, 409 (D.Mass.1975) (action to vacate arbitration award held barred by the state 30 day limitations period); United Parcel Service, Inc. v. Mitchell, 451 U.S. at 63, 101 S. Ct. at 1564 n. 5 (dicta) (most state statutes of limitations on actions to vacate arbitration awards are ninety days or less.)
Applying the thirty day statute of limitations in this case, the arbitrator's award was received as early as December 15, 1980 and certainly not later than January 16, 1981. The action to vacate was filed on February 24, 1981, beyond the thirty day limitation period. Plaintiff has not come forward with any mitigating explanation for the untimely filing. Accordingly, on the merits, I find that the action to vacate the award is time-barred and that defendant is entitled to summary judgment in its favor as to plaintiff's complaint.
B. Defendant's Counterclaim to Enforce the Arbitration Award
Based on the Third Circuit's decision in Office Center Services, infra, -- - F.2d at -- - -- , I am now satisfied that once an action to vacate is time-barred, a party is thereby precluded from asserting defenses to a counterclaim for enforcement which could have been raised in a timely suit to vacate the award. There, the plaintiff-union sought to confirm an arbitration award entered against defendant-employer. The district court ruled that the objections to confirmation raised by defendant-employer were affirmative defenses which were waived since they were not timely raised in a motion to vacate. The Third Circuit affirmed, stating that "if a defendant has important defenses to an arbitration award, he should raise them within the period prescribed for actions to vacate rather than wait to raise them as defenses in a confirmation proceeding." Id. at 16. The court then reasoned that adherence to the relatively short statute of limitations for actions to vacate, which was then three months, furthered the policy of promoting finality in the arbitration of labor disputes. Id. at 17. The court held that under the then applicable three-month Pennsylvania statute of limitations, the failure to raise objections in three months which could have been raised in a motion to vacate, modify, or correct the award bars raising these objections in subsequent confirmation proceedings. Id. at 17.
Under the principles set forth in Office Center Services, the plaintiff in this case cannot assert as affirmative defenses to the counterclaim the various grounds it asserted as a basis for vacating the arbitrator's award, namely, (1) that the arbitrator's findings and conclusions were clearly erroneous, (2) that they did not draw their essence from the collective bargaining agreement and (3) that the arbitrator was biased against plaintiff.
The only defense raised by the plaintiff, whether by its answer to the counterclaim or in response to defendant's motion to reconsider, is that defendants' claim is not one upon which relief can be granted. On that basis alone, it seeks to vacate the arbitration award. The essence of this defense is identical to the substantive allegations of plaintiff's complaint to vacate, i.e., that the arbitration award is improper and should be vacated. Such a defense, therefore, falls squarely within the category of grounds which necessarily would have been advanced in an action to vacate the award. Since the action to vacate was untimely, its gravaman cannot now be asserted as a timely defense to the counterclaim in order to obtain the same affirmative relief-vacation of the arbitration award. In short, plaintiff may not do indirectly what the statute of limitations forbids it to do directly.
Plaintiff has not asserted any other defense in its pleading and none has been raised by motion. However, it argues that certain defenses such as timeliness or jurisdiction can be raised at any time. Even if plaintiff's argument survives the Third Circuit's holding in Office Center Services, I find it is meritless. There is no evidence of record indicating that a jurisdictional defense could be properly asserted in this case. The mere fact that a jurisdictional defense may be raised at any time does not, of itself, create a disputed factual issue which would warrant denial of defendant's motion for summary judgment.
Nor is plaintiff entitled to raise a statute of limitations defense. Fed.R.Civ.Pro. 8(c) requires that in a pleading to a preceding pleading a party shall set forth affirmatively all of its affirmative defenses including statute of limitations.
Generally, failure to plead an affirmative defense results in the waiver of that defense and its exclusion from the case. C. Wright & A. Miller, Federal Practice and Procedure § 1278, at 399-41 (1973). In particular, the statute of limitations defense has been held waived when not pleaded. Roseman v. Hassler, 382 F. Supp. 1328, 1341 (W.D.Pa.1974), aff'd, 520 F.2d 1364 (3d Cir.), cert. denied 424 U.S. 921, 96 S. Ct. 1128, 47 L. Ed. 2d 329 (1975); see C. Wright & A. Miller, supra, § 1278, at 340-41 & n.39; cf. Strauss v. Douglas Aircraft Co., 404 F.2d 1152 (2d Cir. 1968) (statute of limitations defense waived if not pleaded "at the earliest possible moment." Id. at 1155).
Here, plaintiff did not assert the statute of limitations defense in its answer to the counterclaim. Nor did plaintiff attempt to amend its answer to assert such a defense. The possibility of a statute of limitations defense was first suggested in plaintiff's response to defendant's Motion for Reconsideration. Even so, plaintiff did not assert a defense, it merely argued that such a defense could be raised at any time. Under these circumstances, I hold, as a matter of law, that plaintiff has waived any statute of limitations defense by failing to plead it.
Aside from raising the spectres of timeliness and jurisdiction, plaintiff does not offer any factual basis for denial of defendant's summary judgment motion. Accordingly, defendant's motion for reconsideration is granted and summary judgment in favor of defendant on its counterclaim to enforce the arbitration award is granted.