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KATHLEEN A. ALBERT v. JAMES DENITO (08/17/84)

SUPERIOR COURT OF PENNSYLVANIA


submitted: August 17, 1984.

KATHLEEN A. ALBERT, APPELLANT,
v.
JAMES DENITO

No. 1089 Philadelphia, 1983, Appeal from the Order entered March 30, 1983 in the Court of Common Pleas of Bucks County, Civil Division, No. 81-00441-03-2

COUNSEL

Peter J. Verderame, Langhorne, for appellant.

David Durben, Newtown, for appellee.

Wickersham, Brosky and Tamilia, JJ.

Author: Tamilia

[ 336 Pa. Super. Page 285]

This is an appeal from an Order of the Court of Common Pleas of Bucks County denying appellant's motion to add delay damages to an arbitrators' award in a tort claims action.

Appellant argues that Pa.R.C.P. 238*fn1 relating to delay damages permits the lower court, by virtue of the

[ 336 Pa. Super. Page 286]

    modification provisions of Pa.R.C.P. 1307(d),*fn2 to supplement the arbitrators' award despite her failure to bring a request for such delay damages to the attention of the arbitrators. We disagree.

Our reasons for doing so are threefold: The lower court has correctly stated that Rule 1307(d) relates only to the correction of "obvious and unambiguous errors", under which rubric damages for delay are not included since their

[ 336 Pa. Super. Page 287]

    addition is tantamount to a different, substantive remedy rather than a mere rectification of formal error.

As the comment to Rule 1307(d) states: "If the award is unintelligible or ambiguous or unclear or subject to alternative interpretations, an aggrieved party can only appeal."

No formal appeal was taken as this matter came before the Court of Common Pleas on motion. Assuming this procedure was sufficient to bring the issue under scrutiny,

[T]he Uniform Arbitration Act intends that the court may review or modify or correct the arbitrators only where:

1.) there was an evident miscalculation of figures or an evident mistake in the description of any person, thing or property referred to in the award;

2.) the arbitrators awarded upon a matter not submitted to them and the award may be corrected without affecting the merits of the decision upon the issues submitted; or

3.) the award is deficient in a matter of form, not affecting the merits of the controversy. 42 Pa.C.S.A. ยง 7315(a)(1), (2) and (3).

Greenspan v. United Services Automobile Association, 324 Pa. Super. 315, 322, 471 A.2d 856, 860 (1984).

Despite appellant's argument that no rule requires that the issue of delay damages be raised, common sense dictates that an award cannot be made where injury is not alleged. Further, Pa.R.C.P. 1306, which requires that delay damages be separately indexed on the arbitrators' award document, also states that "the award shall dispose of all claims for relief . . . ." The tacit corollary is clear that a claim must be presented for compensation to be forthcoming. The obvious parallel is to Pa.R.App.P. 302(a) which requires that for consideration to be afforded an issue on appeal, it must have been raised below or it is waived.

Finally, the recent case of Greenspan v. United Services Automobile Association, supra, is dispositive. In that case, under similar factual circumstances and where delay

[ 336 Pa. Super. Page 288]

    damages had in fact been alleged in the complaint, we stated:

For this Court to find that Rule 238 affords the impetus for altering the award of the arbitrators would be tantamount to weaving new law out of whole cloth. There is no basis in fact or law for such a pronouncement by this Court, regardless of the appealability of such a notion.

Id., 324 Pa. Superior Ct. at 323, 471 A.2d at 860 (emphasis in original)

Although Greenspan applies specifically to common law, rather than statutory arbitration, we feel no compunction in adhering to this principle.

Order of the Court of Common Pleas of Bucks County is affirmed.


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