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11/25/97 LINDA CARON v. RELIANCE INSURANCE COMPANY

November 25, 1997

LINDA CARON, APPELLEE
v.
RELIANCE INSURANCE COMPANY, APPELLANT; LINDA CARON, APPELLEE V. RELIANCE INSURANCE COMPANY, APPELLANT



Appeal from the ORDER ENTERED February 07, 1997. In the Court of Common Pleas of BERKS County, CIVIL, No. 2061-94 A.D., 2062-94, A.D., 1738-97 J.D.

Appeal from the JUDGMENT ENTERED February 21, 1997. In the Court of Common Pleas of BERKS County, CIVIL, No. 2061-94 A.D., 2062-94, A.D., 1738-97 J.D. Before STALLONE, J.

Before: Beck, Schiller, and Brosky, JJ.

The opinion of the court was delivered by: Schiller

OPINION BY: SCHILLER, J.

Filed November 25, 1997

Appellant, Reliance Insurance Company, appeals from the order entered by the Court of Common Pleas of Berks County denying its petition for leave to file a petition to vacate an arbitration award nunc pro tunc, and from the judgment entered in favor of appellee for $500,091.30. We vacate the judgment and remand for further proceedings.

FACTS:

On March 17, 1989, appellee, Linda Caron, was injured as a result of a three car collision which occurred near Reading, PA. Appellee was employed by Caron International Inc., an Illinois corporation, which had provided a 1986 Plymouth Voyager minivan for her business and personal use. However, at the time of the accident, though she was doing company business, she was using a friend's car purely as a matter of preference. As a result of the accident appellee sustained multiple injuries and is disabled from any type of employment. After receiving almost $250,000 from the insurance carriers of the other two cars in the accident and from her friend's insurance carrier, appellee made a claim to appellant Reliance, Caron International's insurer, for underinsured motorist benefits.

Reliance's policy with Caron International covered 27 vehicles, including the minivan assigned to appellee. Appellee was not identified in the policy as an insured; however, she was listed on a proposal for insurance submitted by Reliance to the company as the driver of the minivan. Appellant denied coverage, and the parties submitted the matter to arbitration pursuant to the policy's arbitration clause. On April 6, 1994, after a hearing, a board of arbitrators concluded that appellee was not an "insured" under the policy because she was not operating a vehicle covered by the policy at the time of the accident. Appellee then filed a petition to vacate the arbitrators' decision, as well as a declaratory judgment action. On May 4, 1995, following consolidation of the actions, the trial court granted appellee summary judgment on the declaratory judgment action and granted appellee's petition to vacate the arbitration decision, holding that the insurance policy violated Pennsylvania public policy because it did not confer "class one" status on appellee. The trial court remanded the case to the arbitrators for further proceedings. Appellant then filed an appeal to this Court, which was quashed on September 29, 1995, as being interlocutory.

When the matter went before the arbitrators again, they concluded not only that appellee was covered but that she was allowed to stack the coverages of the twenty-seven vehicles so that the total underinsured benefits available to appellee was $27,000,000. *fn1 On May 7, 1996, the arbitration panel awarded appellee $745,000 in damages, which, after the offset for appellee's recoveries from the other parties in the accident, resulted in an award against appellant for $500,091.30. Appellant then attempted to file a petition to vacate this arbitration award, but due to an error by counsel it did not file it within the required 30 days. Appellee meanwhile filed a petition to confirm the arbitration award. Appellant then filed a petition for leave to file a petition to vacate the arbitration award nunc pro tunc, which the court denied on February 7, 1997. On February 17, 1997, the court granted appellee's confirmation petition, and the award was reduced to judgment four days later. This timely appeal from the judgment followed.

Discussion

Appellant now raises the following issues: (1) whether the trial court erred in refusing to allow it leave to file a new petition to vacate nunc pro tunc; (2) whether the trial court erred in concluding that the insurance policy violated Pennsylvania's public policy by not covering appellee as an insured; and (3) whether the arbitrators erred in holding that appellee was an insured who could stack the policies, and that the underinsured limits were $1,000,000 per vehicle.

Turning to appellant's first issue, Reliance argues that the trial court erred in refusing to allow it to file a petition to vacate the arbitration award of May 7, 1996, nunc pro tunc.

Under the Uniform Arbitration Act, *fn2 42 Pa.C.S. § 7301 et. seq., a party has thirty days from the receipt of an arbitration award to petition the trial court to vacate that award. 42 Pa.C.S. § 7314(b). Here, the trial court held a hearing on appellant's petition for leave to file a petition to vacate nunc pro tunc and found that the arbitrators' May 7, 1996, award was delivered to the parties on May 9, 1996. Therefore, appellant's petition to vacate had to have been filed by June 10, 1996 to be timely. *fn3 The trial court found that due to the negligence of appellant's counsel, *fn4 appellant's petition to vacate was not filed by that date; instead, on June 20, 1996, appellant filed the nunc pro tunc request.

"The time for taking an appeal cannot be extended as a matter of grace or mere indulgence." Bass v. Commonwealth, 485 Pa. 256, 259, 401 A.2d 1133, 1135 (1979). Extensions of time will only be granted in cases where there is fraud or some breakdown in the court's operation. Id. Here, the trial court specifically found that appellant's delay in filing a timely petition to vacate was due to the negligent conduct of appellant's counsel. Cf. Bass v. Commonwealth, supra (excusing delay where untimeliness caused by non-negligent conduct of counsel and his staff). In light of this finding, and given that the decision whether to permit a nunc pro tunc appeal is one entirely within the trial court's discretion, see Lough v. Spring, ...


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