Carr, P. v. First Commonwealth Bank

2025 Pa. Super. 74

• Court: Superior Court of Pennsylvania
• Decided: March 26, 2025
• Docket: 345 WDA 2024
• Status: Published

Opinion

J-A02007-25 2025 PA Super 74

PATRICK J. CARR, PATRICK K. CARR, : IN THE SUPERIOR COURT OF AND DANIEL K. CARR, : PENNSYLVANIA : Appellants : : v. : : FIRST COMMONWEALTH BANK : : Appellant : No. 345 WDA 2024

Appeal from the Order Entered February 21, 2024 In the Court of Common Pleas of Allegheny County Civil Division at No(s): GD-19-013839, GD-21-005609

PATRICK J. CARR, PATRICK K. CARR, : IN THE SUPERIOR COURT OF AND DANIEL K. CARR, : PENNSYLVANIA : Appellants : : v. : : FIRST COMMONWEALTH BANK : : Appellant : No. 441 WDA 2024

Appeal from the Order Entered February 21, 2024 In the Court of Common Pleas of Allegheny County Civil Division at No(s): GD-19-013839, GD-21-005609

BEFORE: KUNSELMAN, J., MURRAY, J., and BECK, J.

OPINION BY KUNSELMAN, J. FILED: March 26, 2025

In this arbitration dispute, Patrick J. Carr (“Father”), Patrick K. Carr, and

Daniel K. Carr (“Sons”) appeal from the trial court’s order partially vacating

the arbitrator’s award in favor of the Bank. First Commonwealth Bank also

cross appeals from that same order. It contends that the trial court lacked

subject-matter jurisdiction to modify the arbitration award, because the Carrs J-A02007-25

appealed the arbitration award to the trial court well after the 30-day appeal

period expired. We agree. Thus, we vacate the trial court’s February 21,

2024 Order for lack of jurisdiction and remand for entry of judgment in favor

of the Bank.

On January 22, 2019, the Carrs opened a joint account at the Bank and

deposited $83,576.78. The Carrs signed an agreement with the Bank, which

incorporated common-law-arbitration provisions.

A judgment creditor from an unrelated matter1 learned of the account

and garnished it. Without seeking the Carrs’ permission, the Bank issued a

check to the creditor for $38,046.97 from the account to satisfy the

garnishment judgment. In response to the payout, the Carrs sued the Bank

in the Court of Common Pleas of Allegheny County, which compelled

arbitration.2

On March 23, 2021, the arbitrator ruled in favor of the Bank on all

counts. He dismissed the Carrs’ claims as meritless and awarded $10,245.32

in attorneys’ fees and costs to the Bank.

Tragically, three weeks later, the attorney for the Carrs suffered the

unexpected death of his stepson. While dealing with the fallout of the death,

counsel missed the 30-day window in which to appeal the arbitrator’s award ____________________________________________

1 See Joyce v. Carr, GD 14-013292 (C.C.P. Allegheny 2016). Daniel K. Carr was the only named defendant in that proceeding.

2 The Carrs raised counts for breach of contract, breach of fiduciary duty, and

violations of the Uniform Trade Practices and Consumer Protection Law. See 73 P.S. §§ 201-1 – 201-10.

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to the trial court. See Carrs’ Motion for Nunc Pro Tunc Relief at 2-3 (admitting

that “an appeal would have been due by April 23, 2021”).

On May 11, 2021, the Carrs moved for nunc pro tunc relief and asked

the trial court to set aside the 30-day filing requirement. On May 20, 2021,

the Bank petitioned for the court to confirm the arbitration award and enter

judgment in its favor.

On May 27, 2021, the trial court granted the Carrs 20 more days to

appeal the arbitration award. It took no action on the Bank’s petition.

On June 16, 2021, the Carrs moved to vacate the arbitration award and

to proceed de novo before the common pleas court. The parties filed briefs,

and the trial court heard oral argument. On August 25, 2021, the trial court

affirmed the arbitrator’s denial of relief to the Carrs but vacated the

arbitrator’s award of $10,245.32 in legal fees to the Bank.

The parties cross appealed, and this Court discovered “factual dispute[s]

as to whether the Carrs received a copy of the arbitration agreement prior to

signing the account agreement . . . [and] whether the Carrs accepted the

terms of the arbitration agreement.” Carr v. First Commonwealth Bank,

1130 WDA 2021, 1180 WDA 2021, 2023 WL 1794264 at *8 (Pa. Super. 2023)

(non-precedential), reargument denied (April, 14 2023). Thus, the trial court

“abused its discretion in [compelling arbitration] without receiving additional

evidence to resolve the factual dispute regarding the existence of a valid

agreement to arbitrate.” Id. at *9. We vacated the August 25, 2021 Order

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and remanded for an evidentiary hearing to ascertain whether the parties had

entered a valid arbitration agreement.

Following the hearing, the trial court found that the parties formed a

valid arbitration agreement. The court entered an order on February 21, 2024

reinstating the terms of its August 25, 2021 Order. Again, the parties cross

appealed.

We discuss only the Bank’s cross appeal, because it challenges the trial

court’s appellate jurisdiction to modify the arbitration award. That issue is

dispositive. According to the Bank, because the Carrs did not appeal to the

trial court within 30 days of the arbitration award, the trial court erroneously

exercised jurisdiction over the motion to vacate the award. We agree.

The question of “appealability of an order goes to the appellate court’s

jurisdiction.” Williams v. Williams, 385 A.2d 422, 423 (Pa. Super. 1978)

(en banc). Lack of “jurisdiction of a court or administrative tribunal to act in

a matter is an issue that cannot be waived by the parties, nor can the parties

confer subject matter jurisdiction on a court or tribunal by agreement or

stipulation.” Mastrocola v. Southeastern Pennsylvania Transportation

Authority, 941 A.2d 81, 88 (Pa. Cmwlth. 2008).

Jurisdiction is “a question of law; the appellate standard of review is de

novo, and the scope of review is plenary.” Crespo v. Hughes, 292 A.3d 612,

615 (Pa. Super. 2023).

“In a common-law-arbitration case, the parties have only 30 days to

challenge the arbitrators’ award.” Hall v. Nationwide Mutual Ins. Co., 629

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A.2d 954, 957 (Pa. Super. 1993). The General Assembly has commanded

that, if a party petitions to confirm a common-law-arbitration award and 30

days have passed since the issuance of the award, “the court shall enter an

order confirming the award and shall enter a judgment or decree in

conformity with the order.” 42 Pa.C.S.A. § 7342(b) (emphasis added).

Interpreting that section, this Court has said, “any issues a party wishes

to raise must be raised within 30 days of the date of the award, since after

that time it is mandatory for the trial court to confirm an award upon

application of either party.” Hall, 629 A.2d at 957. “This is in keeping with

the 30-day time period for appeals established by the legislature in other types

of cases.” Id. Thus, we have directly analogized the time in which to seek

review of a common-law-arbitration award to the filing of any other appeal.

Essentially, 42 Pa.C.S.A. § 7342(b), the statute setting forth the time

period for appealing an arbitration award, functions like Pennsylvania Rule of

Appellate Procedure 903. Rule 903 “requires that all ‘notices of appeal shall

be filed within 30 days after the entry of the order from which the appeal is

taken.’” Whittaker v. Lu, 323 A.3d 871, 875 (Pa. Super. 2024) (quoting

Pa.R.A.P. 903).

We hold that the plain language of Section 7342(b), like Rule 903, is

jurisdictional, because that statute deprives the trial court of competency to

review the merits of an arbitrator’s award if no party challenges the award

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within 30 days.3 “Because this filing period is jurisdictional in nature, it must

be strictly construed and may not be extended as a matter of indulgence or

grace.” Id.

Here, the Carrs acknowledged that they failed to seek review of the

arbitration award in a timely manner. See Carrs’ Motion for Nunc Pro Tunc

Relief at 2-3. In fact, they did not even request nunc pro tunc relief until 19

days after their appellate window had closed.

Rather than confine itself to the appellate jurisdiction that the legislature

prescribed, the trial court granted itself an additional 20 days from the date

of its order to entertain the Carrs’ appeal. By the time the Carrs actually

appealed to the trial court on June 16, 2021, 85 days had passed since the

arbitrator entered the award.

In granting the Carrs this grace period, the trial court unintentionally

violated the separation-of-powers doctrine. The Constitution of the

Commonwealth of Pennsylvania explicitly grants the power to set jurisdictional

boundaries of the courts to the legislature. For example, the courts of

common pleas “hav[e] unlimited original jurisdiction in all cases except as

may otherwise be provided by law.” Pa. Const. art. V § 5(b) (emphasis ____________________________________________

3 Notably, the Commonwealth Court reached the same conclusion regarding

statutory-arbitration appeals for public-sector-union grievances. “When a party seeks judicial review of an arbitrator’s award, whether by asking the court to vacate the award or to modify or correct the award, such judicial review must be sought within 30 days of delivery of the award to the applicant.” Symons v. Schuylkill County Vocational School, 884 A.2d 953, 957 (Pa. Cmwlth. 2005).

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added). In cases of appeals from arbitration, the General Assembly has

provided that the courts of common pleas have only limited jurisdiction,

lasting 30 days from the date of the arbitration award. See 42 Pa.C.S.A. §

7342(b). When that time frame expires, the trial court’s appellate jurisdiction

expires with it.

The Carrs contend that the trial court exercised permissible discretion

in granting them more time to appeal. They claim to have “demonstrated the

existence of extraordinary circumstances which clearly justify the trial court’s

granting of nunc pro tunc relief.” Carrs’ Reply/Cross-Appellee Brief at 16. The

Carrs recite the hardships their attorney endured after his stepson’s death,

including identifying the body, working with the State Police, rescheduling

appointments and court hearings, planning the funeral, and comforting his

grieving family members. See id.

To support the trial court’s extension of the appellate time period, the

Carrs rely on Bass v. Commonwealth, 401 A.2d 1133 (Pa. 1979). There,

plaintiff brought a wrongful-death claim in the Commonwealth Court’s original

jurisdiction. That court sustained a preliminary objection based on

governmental immunity and dismissed one of the defendants.

Plaintiff’s counsel authored a notice of appeal and gave it to his secretary

for filing. However, the secretary became ill and did not return to the office

until after the appellate period expired. Plaintiff filed a petition to appeal nunc

pro tunc in the Supreme Court. Id. at 1134.

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Only five Justices heard the matter, rather than the High Court’s full

complement of seven Justices. Three Justices joined the lead opinion to grant

nunc pro tunc relief and allow plaintiff’s untimely appeal to proceed. Two

Justices dissented. Thus, Bass is a minority-majority decision.4

Our research reveals that the Supreme Court of Pennsylvania cited Bass

in majority opinions several times. The Court denied nunc pro tunc relief in

Criss v. Wise, 781 A.2d 1156 (Pa. 2001). There, appellant’s attorney mailed

a notice of appeal to the prothonotary six days prior to the deadline for appeal,

and the notice did not arrive at the courthouse until two days after the appeal

period expired. The Criss Court held this was negligence, because delays in

the mail during the Christmas holidays were foreseeable.

In three cases, the High Court granted nunc pro tunc relief. One

involved a breakdown of court operations. See Union Electric Corp. v.

Board of Property Assessment, Appeals & Review of Allegheny

County, 746 A.2d 581, 583 (Pa. 2000) (allowing an appeal nunc pro tunc due

to breakdown in court’s operations where the Allegheny County Board of

Property Assessment, Appeals and Review, without authority, issued an order

extending the time for filing tax assessment appeals from the legislative

deadline of February 29, 1996 to April 1, 1996).

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4 Pennsylvania adheres to the position that minority-majority decision of the

Supreme Court is not a plurality, but rather is binding precedent. See Commonwealth v. Holmes, 79 A.3d 562, 575 n.8 (Pa. 2013) (“A decision of this Court has binding effect if a majority of the participating Justices joined the opinion.”)

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Another allowed a criminal defendant to file a late appeal from a district

judge to the court of common pleas to protect his constitutional right of

appeal. See Commonwealth v. Stock, 679 A.2d 760, 764-75 (Pa. 1996)

(allowing an appeal nunc pro tunc from the district justice to the court of

common pleas, where the defendant’s attorney missed the deadline in order

to protect defendant’s state constitutional right to appeal and noting “it would

be entirely unfair in the criminal context to permit [a defendant's] state

constitutional right of an appeal to be extinguished solely on the basis of his

counsel's failure to timely file the appeal where [the defendant] had requested

an appeal to be filed” and no PCRA relief was available.)

In the final case, the Court allowed a claimant in an unemployment case

to appeal late when he was hospitalized due to a heart attack, and filed his

appeal four days after he was released. See Cook v. Unemployment

Compensation Board, 671 A.2d 1130, 1132 (Pa. 1996) (finding

extraordinary circumstances and allowing a nunc pro tunc appeal of

unemployment case where the claimant was hospitalized during the time of

the appeal deadline and there was no substantial evidence of record to support

the board's conclusion that the claimant was able to conduct his appeal from

his hospital bed; he was hospitalized following a collapse; he was placed in

intensive care for three days followed by four days in ordinary care; he was

unable to leave the hospital; he did not have with him his notice of

determination; and the diagnosis upon discharge supported his claim that he

was seriously ill when admitted to the hospital). But see id., Dissenting

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Opinion by Justice Zappala (believing Bass was wrongly decided by allowing

“non-negligent happenstance” as a basis for allowing a nunc pro tunc appeal.

He observed that the essential difficulty with Bass “is its ad hoc character,

the complete lack of guidance for assessing whether given circumstances will

be deemed ‘non-negligent’”). We observe that, like Bass, Cook was also a

minority-majority decision, where only three Justices spoke for the Court.

However, none of the situations where the Supreme Court allowed a late

appeal applies here. Critically, this Court has repeatedly declined attempts to

extend Bass.

For example, in In re C.K., 535 A.2d 634 (Pa. Super. 1987), the

orphans’ court issued an order terminating the rights of C.K.’s parents on

January 22, 1987. Three weeks later, the parents’ attorney had to leave his

office for an extended period, because his mother had a massive heart attack.

The attorney needed to be at his mother’s side around the clock.

Then, on February 19, 1987, the parents called the attorney’s office and

expressed their desire to appeal. The attorney did not contact his office until

February 26, four days after the 30-day appellate period had run. The parents

sought permission from the trial court to appeal nunc pro tunc on the grounds

of their attorney’s family emergency. The orphans’ court denied relief, and,

on appeal, we affirmed.

Like the Carrs, the parents in C.K. relied on Bass, supra, to excuse

their failure to file a timely appeal. This Court rejected that reliance and said,

“As the Supreme Court has so many times opined, the time for taking an

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appeal cannot be extended as a matter of mere indulgence. An extension of

such time can be permitted only in those cases where there has been fraud or

some breakdown in the court’s operation.” C.K., 535 A.2d at 636. We then

reviewed the analysis of Bass, and interpreted it as having “appeared to

create a new ground for an appeal nunc pro tunc, i.e., non-negligent

happenstance.” Id. at 637.

This Court then explained why the logic of Bass does not extend to an

attorney who misses an appellate filing date due to a family crisis as follows:

We agree with those courts that have given Bass a narrow scope, limiting it to cases presenting unique and compelling facts justifying a late filed appeal. Consequently, we decline to extend Bass to cover a situation like the instant case. As we have stated, there is no question that appellants’ counsel did not act with the care and professionalism expected of an attorney. Unlike in Bass itself, counsel here has not presented us with any indication that the appeal filing deadline was missed despite the existence of adequate, deadline-monitoring procedures at counsel’s office. Indeed, here counsel was absent from his office for an extended period and yet despite this fact, he did not make any special arrangements to insure that his professional obligations would continue to be fulfilled. Under these circumstances, where there is no evidence of non-negligent happenstance, an appeal nunc pro tunc cannot be permitted on the basis of Bass.

Id. at 639.

Here, the Carrs’ lawyer experienced tragedy at the death of his stepson,

and he has our deepest sympathies. However, that does not mean he had a

non-negligent reason for missing the appellate filing date. As in C.K., counsel

could not overlook his professional duties while tending to personal and

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familial affairs. Therefore, Bass does not afford the Carrs a basis for nunc pro

tunc relief.

Additionally, the Carrs also cite Baravordeh v. Chunhua Cui, 330 EDA

2024, 2024 WL 4679239 (Pa. Super. 2024) (non-precedential), for the

proposition that “an illness which affects counsel’s ability to represent his/her

client may justify the granting of nunc pro tunc relief.” Carrs’ Third Step Brief

at 17. Notably, the trial court in Baravordeh did not grant nunc pro tunc

relief. The court determined that, although one of the appellant’s attorneys

contracted COVID-19 four days after the trial, this did not present a non-

negligent reason for failing to file post-trial motions within ten days. See

Pa.R.C.P. 227.1(c) (establishing a ten day deadline for the filing of post-trial

motions). On appeal, we affirmed. Thus, the attorney’s illness did not justify

the late filing.

Furthermore, because Baravordeh dealt with post-trial motions, it is

procedurally distinguishable from this case. The trial court has discretion to

grant nunc pro tunc relief on post-trial motions, so long as the request for

nunc pro tunc relief is filed while the trial court retains jurisdiction – i.e., an

appeal has not yet been filed and 30 days have not passed. See 42 Pa.C.S.A.

§ 5505.

“Pennsylvania courts have consistently held that trial court judges have

wide latitude in considering whether to address the merits of post-trial motions

that are filed outside the 10-day period required by Rule 227.1.” D.L. Forrey

& Assocs., Inc. v. Fuel City Truck Stop, Inc., 71 A.3d 915, 920 (Pa. Super.

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2013); see also Kurtas v. Kurtas 555 A.2d 804, 806 (Pa. 1989) (holding

that trial courts have the discretion to entertain untimely motions for post-

trial relief because the 10-day period under Rule 227.1 is not a jurisdictional

requirement, but merely a procedural rule). “So long as the court has

jurisdiction, it can exercise its equitable powers to hear untimely post-trial

motions.” Id. During that 30 day period, the trial court has discretion to

grant the nunc pro tunc relief.

Regarding an appeal from an arbitration award, by contrast, once the

30 days have ended, the trial court has no jurisdiction to grant nunc pro tunc

relief, absent fraud, a breakdown in the operation of the courts, or a

nonnegligent happenstance.5 Hence, the Carrs reliance upon Baravordeh

affords them no relief.

In sum, the trial court erroneously granted nunc pro tunc relief to the

Carrs by giving them 85 days in which to appeal the common-law-arbitration

award, when the legislature gave them only 30 days. The trial court lacked

jurisdiction to review the arbitration award, absent fraud or a breakdown in

the court’s operation. Although a tragic event in the life of their attorney

occurred, the Carrs did not provide a sufficient reason for granting nunc pro

tunc relief. See C.K., supra. The appeal from arbitration was untimely; thus,

we reverse the trial court’s grant of nunc pro tunc relief and vacate the order

5 To date, neither a four Justice majority nor the General Assembly has ever

permitted non-negligent happenstance as a basis for an untimely appeal.

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modifying the arbitration award. In addition, we dismiss the parties’ other

appellate issues as moot.

May 27, 2021 Order granting nunc pro tunc relief reversed. February

21, 2024 Order vacated. Appeal number 345 WDA 2024 dismissed.

Case remanded for the entry of an order granting the Bank’s petition for

entry of judgment in its favor and against the Carrs for $10,245.32.

Jurisdiction relinquished.

3/26/2025

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