The 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
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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
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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
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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
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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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