J-A18033-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

MORAN INDUSTRIES, INC., AND JACK 

MORAN AND MAUREEN F. MORAN,

:

:

IN THE SUPERIOR COURT OF 

PENNSYLVANIA

:

Appellees :

:

v. :

:

ERIE INSURANCE EXCHANGE, :

:

Appellant : No. 1835 MDA 2014

Appeal from the Order entered on October 6, 2014

in the Court of Common Pleas of Luzerne County,

Civil Division, No. 7738 of 2005

BEFORE: FORD ELLIOTT, P.J.E., STABILE and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.: FILED SEPTEMBER 29, 2015

Erie Insurance Exchange (“Erie”) appeals from the Order denying its 

Petition to Modify or Vacate the Appraisal Award. We reverse and remand.

Moran Industries, Inc., Jack Moran and Maureen F. Moran (collectively 

“Moran”) owned a three-story commercial building at 651-653 South Main 

Street in Wilkes-Barre. The building had two sides and an entry door on 

each side. On July 18, 2003, the interior floor on the 653 side of the 

building collapsed because of rainwater infiltrating the building through 

openings in the roof, which caused the framing to rot around the floor’s 

wooden joists.1 At the time of the collapse, the building was covered by an 

insurance policy (“Policy”) issued by Erie. However, Erie declined coverage 

 

1 The 651 side of the building was intact and did not collapse. Nevertheless, 

both the 651 and 653 sides of the building were torn down. 
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on the building based upon its belief that the damage was caused by longterm exposure to moisture entering through the roof, which constituted an 

ongoing condition.

Moran filed a declaratory judgment action against Erie, seeking a 

declaration that the losses sustained were covered by the Policy. Following 

a non-jury trial, the trial court concluded that the Policy covered the 

property damage and ordered Erie to pay Moran. Erie filed Post-Trial 

Motions, which were denied. This Court affirmed the trial court’s 

determination. See Moran Indus., Inc. v. Erie Ins. Exch., 37 A.3d 1229 

(Pa. Super. 2011) (unpublished memorandum),2appeal denied, 44 A.3d 

1162 (Pa. 2012).

Pursuant to the Policy, Erie demanded an appraisal to determine the 

amount of loss. Erie chose Gerald Williams (“Williams”) as its appraiser and 

Moran chose Todd Ross (“Ross”) as its appraiser. However, because the 

parties were unable to agree upon an umpire, the trial court entered an 

Order naming Mark Sobeck (“Sobeck”) as the umpire. On June 17, 2013, 

Sobeck, joined by Williams, issued an appraisal award, which limited the 

determination of losses to the 653 South Main Street portion of the property, 

and found that the loss was $500,471.00.

 

2 Relevant to this appeal, this Court referred to the property in question as a 

“building” at 651-653 South Main Street. See Moran, 37 A.3d 1229 

(unpublished memorandum at 2).
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Moran filed a Petition to Modify and/or Vacate Appraisal Award, 

arguing that Sobeck exceeded his scope of authority. Moran argued that 

Sobeck exceeded his power, as set forth in the Policy, to determine the 

amount of loss covered by the Policy. Moran also argued that Sobeck and 

Williams improperly made legal and factual determinations in establishing 

that the Policy only covered the portion of the building that collapsed rather 

than the entire building, where the Policy, the trial court, and this Court all 

stated that the “covered property” included only one building. Erie filed a 

Response, arguing that there was no limitation in the Policy as to how the 

appraiser/umpire could determine the amount of covered loss. 

On October 17, 2013, the trial court granted Moran’s Petition, vacated 

Sobeck’s appraisal award, and appointed Thomas J. O’Connor (“O’Connor”) 

as the new umpire. On May 28, 2014, O’Connor, joined by Ross, issued an 

appraisal award of $1,235,869.00 to Moran. Erie filed a Petition to Modify 

and/or Vacate O’Connor’s appraisal award. The trial court denied Erie’s 

Petition. Thereafter, Erie filed a Notice of Appeal.

On appeal, Erie raises the following questions for our review:

1. Whether the trial court abused its discretion in vacating 

the appraisal award of [] Sobeck entered [on] June 17, 

2013, made final by the Honorable Richard M. Hughes, 

III’s, Order dated October 6, 2014, absent evidence of 

fraud, misconduct, corruption, irregularity causing an 

unjust result, or exceeding the umpire’s scope of 

authority[?]

2. Whether the trial court erred in concluding that the court 

had made a determination that the subject property had 
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consisted of one building as opposed to two separate 

buildings[?]

Brief for Appellant at 5 (capitalization omitted).

Prior to addressing Erie’s claims, we must determine, sua sponte, 

whether we have jurisdiction to consider this appeal. See Riley v. Farmers 

Fire Ins. Co., 735 A.2d 124, 130 (Pa. Super. 1999). It is well-settled that 

when a party opposes an appraisal, it must, within thirty days of the award, 

file a petition to vacate or modify to contest its propriety. See id.; see also 

McGourty v. Pennsylvania Millers Mut. Ins. Co., 704 A.2d 663, 664 (Pa. 

Super. 1997) (stating that for purposes of enforceability, there is no 

distinction between a common law arbitration and appraisal). Once thirty 

days has passed from the issuance of an appraisal award, it is mandatory 

that the trial court confirm such award upon petition of either party, and 

enter judgement in conformity therewith. See Riley, 735 A.2d at 130; see 

also K.H. v. J.R., 826 A.2d 863, 867 (Pa. 2003) (stating that the entry of a 

judgment on the docket is a requisite for an appealable order); Snyder v. 

Cress, 791 A.2d 1198, 1200 (Pa. Super. 2002) (stating that thirty days after 

a common law arbitration award, 42 Pa.C.S.A. § 7342(b) provides that 

courts, upon petition of either party, enter a confirmation of the award and a 

“judgment or decree in conformity therewith.”).
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Here, following the issuance of O’Connor’s appraisal award,3and the 

trial court’s denial of Erie’s Petition to Modify and/or Vacate O’Connor’s 

appraisal, the trial court failed to confirm the award4or enter judgment in 

favor of Moran. See Kemether v. Aetna Life & Cas. Co., 656 A.2d 125, 

127 (Pa. Super. 1995) (stating that after the appellant’s petition to vacate 

an award is denied, it is not appellant’s obligation to file a petition to confirm 

the award denying them recovery, but is the trial court’s obligation to enter 

an order confirming the award). Nevertheless, we may review an appeal in 

the absence of a properly entered judgment where the appealed order was 

clearly intended to be a final pronouncement in the case. See Fanning v. 

Davne, 795 A.2d 388, 391 (Pa. Super. 2002). Thus, because the Order 

denying Erie’s Petition was the final pronouncement on the matter, in the 

interests of judicial economy, we will regard as done what ought to have 

been done and review the appeal. See id. at 392; see also Snyder, 791 

A.2d at 1200-01 (addressing the merits of an appeal taken from the denial 

 

3 The trial court’s initial Order vacating Sobeck’s appraisal award and 

remanding for further proceedings was an interlocutory Order, and could not 

be appealed by Erie. See McGourty, 704 A.2d at 665 (stating that “an 

order vacating an appraisal award and directing further proceedings with a 

new appraisal panel is interlocutory and not appealable[.]”) (footnote 

omitted).

4 Moran filed a Petition to confirm the appraisal award within thirty days of 

the award. However, the trial court did not act on the Petition due to Erie’s 

filing of the Petition to Modify and/or Vacate O’Connor’s appraisal award. 

Moreover, the record does not indicate that Moran filed another petition to 

confirm following the trial court’s denial of Erie’s Petition to Modify and/or 

Vacate.
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of a petition to modify and refusing to remand for the “ministerial act” of 

entering a confirming order).

In its first claim, Erie contends that the trial court abused its discretion 

in vacating Sobeck’s appraisal award. Brief for Appellant at 8. Erie argues 

that contrary to the trial court’s finding, Sobeck did not exceed the scope of 

his authority by concluding that the property at issue “was comprised of two 

separate buildings, as opposed to one covered structure.” Id. Erie claims 

that pursuant to the Policy, the scope of the umpire’s appraisal authority is 

solely to determine the amount of “loss.” Id. at 9-10. Erie asserts that 

there was no restriction on what Sobeck could consider in determining the 

“loss,” and thus, the parties were bound by the initial appraisal. Id. at 10, 

12. Erie also argues that courts have a limited review of appraisal awards 

and that umpires are the final judge of both law and fact, and are afforded 

broad authority in rendering their decisions. Id. at 8-9, 10-13; see also id. 

at 11 (wherein Erie claims that in making a determination, the appraisers 

are given wide discretion in obtaining information and are free to determine 

which submissions by the parties are deemed credible). Erie additionally 

points out that the award could not be vacated because there was no 

evidence of fraud, corruption, or irregularity causing an unjust result. Id. at 

8.

An “[a]ppraisal ... is subject to limited judicial review.” Boulevard 

Assocs. v. Seltzer P’ship, 664 A.2d 983, 987 (Pa. Super. 1995); see also 
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id. (noting that “the scope of an appraisal provision was much more limited 

than the typical arbitration provision since the former provided only for 

resolution of issues of valuation and the latter provided for resolution of an 

entire controversy between the parties.”). 

[J]udicial review of appraisal is limited to fraud, misconduct, 

corruption or other irregularity causing an unjust result. ... [T]he 

reviewing court may examine the appraisers’ scope of authority 

and whether they have exceeded it. The powers of the 

appraisers are determined by the submission assigned to them 

by the parties. Since appraisers do not have authority to decide 

matters not included in the submission, the trial court may 

review the scope of their authority. Assigning this review 

function to the trial court maintains the strict limitation on 

review but assures the parties that the appraisers have not gone 

beyond the submission assigned to them.

Id. (citation omitted); accord Riley, 735 A.2d at 128. Unless restricted by 

the submitted agreement, the appraisers are the final judges of both law and 

fact. Boulevard Assocs., 664 A.2d at 988.

Pursuant to the Policy, the appraisal clause states, in relevant part, the 

following:

2. Appraisal

If you and we fail to agree on the amount of “loss,” either party 

may make written demand for an appraisal. Each party will 

select an appraiser and notify the other of the appraiser’s 

identity within 20 days after the demand is received. The 

appraisers will select a competent and impartial umpire. If the 

appraisers are unable to agree upon an umpire within 15 days 

after both appraisers have been identified, you or we can ask a 

judge of a court of record in the state where your principal office 

is located to select an umpire.

The appraisers shall then set the amount of “loss.” If the 

appraisers submit a written report of an agreement to us, the 
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amount agreed upon shall be the amount of “loss.” If they 

cannot agree, they will submit the differences to the umpire. A 

written award by two will determine the amount of loss.” ...

Policy, Section X, at 15-16. The Policy defines “Loss” as the “direct and 

accidental loss of or damage to covered property.” Id., Section XI, at 18.

Here, the matter was submitted to Sobeck, who issued an appraisal 

award, which stated the following, in relevant part:

1. The buildings were constructed at two different times, had 

two separate deeds, but were listed on the insurance policy as

one building/property.

2. Building number 653 collapsed and 651 did not.

3. The policy covers only the portion of the building that 

collapsed, but [Moran] claims that the #651 building had to 

be torn down at the same time as the #653 building, since 

they were connected. The policy states that[] “a part of a 

building that is standing is not considered to be in a state of 

collapse, even if it has separated from another part of the 

building.”

4. Queen Engineering stated that #651 was not unsafe and was 

intact at the time of their inspection. In an email ... dated 

April 23, 2013, Michael H. Queen, PE stated “On the day of 

our inspection access to the interior of the first and second 

floor levels of the 653 address was available by way of the 

structure at the 651 address. The 651 address was not a 

subject of our inspection. There were no concerns with 

damage or our safety while within the 651 address .... 

[Moran] have not provided any engineering reports stating 

that 651 had to be torn down at the same time as 653.

Opinion/Appraisal, 6/17/13, at 1-2 (emphasis omitted).

Sobeck noted that while the parties agreed that the total area of the 

interior of 651-653 was 8,300 square feet, the appraisers were limited to 

proposing the loss to only the 653 (collapsed) side of the building. Id. at 3; 
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see also Trial Court Opinion, 1/28/15, at 5 (unnumbered) (stating that 

Sobeck “limited each party’s appraiser’s proposed determination of the loss 

to the 653 portion of the property only.”). Erie’s appraiser, Williams, 

proposed a loss of $120 per square foot, totaling $996,000.00 for the entire 

property and $498,000.00 for the 653 side of the building. 

Opinion/Appraisal, 6/17/13, at 3. Moran’s appraiser, Ross, stated that the 

653 side of the building had a loss of $513,942.00 based upon the value of 

the building in 2006 ($487,000.00), a 5% escalation in costs for construction 

projects per year during that time period, and a 25% depreciation. Id. 

Sobeck found the two appraisals to be close and determined the loss to be 

the average of the two appraisals. Id. Sobeck stated the loss was 

$500,471.5 Id. Erie’s appraiser, Williams, joined the finding.

Here, the scope of the authority granted by the appraisal provision to 

the appraisers was the task of determining the amount of loss or damage to 

the covered property. See Policy, Section X, at 15-16; see also id., 

Section XI, at 18 (wherein the policy defines loss, in part, as the damage to 

the “covered property”). The appraisal clause contained in the Policy does 

not restrict the appraisers’ methodology, including utilizing the Policy’s 

coverage provisions, in determining the loss or preserving the right of either 

party to seek review of the factual findings of the umpire. Thus, in the 

 

5 We note that Sobeck incorrectly averaged the two appraisals. An average 

of the parties’ appraisals would be $505,971. It appears Sobeck averaged 

Moran’s stated value of the building in 2006, $487,000, with its appraisal of 

the loss, $513,942. 
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course of ascertaining the loss under the Policy, the appraisers and umpire 

could make a variety of factual and legal determinations in the course of 

setting a value for the damages to the covered property. See Boulevard 

Assocs., 664 A.2d at 988 (stating that unless restricted by the agreement, 

appraisers are the final judges of law and fact, and have the authority to 

decide all matters necessary, including what assessment method to use, in 

setting the value of the property). 

Accordingly, when Sobeck and Williams decided that the most 

appropriate way of determining the loss of the covered property was to find 

that the collapse (damage) was confined to the 653 side of the building, and 

the 651 side of the building was still standing, they clearly were not 

exceeding their scope of authority. See id. (stating that the appraisers were 

acting within their authority in determining the valuation method as it was 

“exactly the type of decision that the parties had asked them to make and 

by which the parties agreed to be bound.”). Further, contrary to Moran’s 

argument that Sobeck was bound to find that loss could only applied to one 

building as a whole, Sobeck was free to make legal and factual 

determinations in setting forth the loss of the property, and the appraisal 

cannot be vacated or modified based upon these grounds. See id. (stating 

that unless restricted by the agreement, appraisers are the final judges of 

both law and fact, “and an award will not be reviewed or set aside for 

mistake in either.”) (citation omitted). Because there is no other ground 
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alleged for refusing to enforce Sobeck’s computation of loss, we conclude 

that Sobeck’s appraisal award is binding. See id. (stating that the 

appraisers did not exceed their scope of authority in utilizing a valuation 

method wherein they considered the actual future use of the property, as 

the agreement did not restrict the appraisers’ ability to make a variety of 

decisions to set a value for the property); see also Riley, 735 A.2d at 

129 (stating that the appraisers acted within the authority outlined in the 

insurance policy in determining the amount of loss).

Based upon the foregoing, we conclude that the trial court exceeded 

its review powers by vacating Sobeck’s appraisal award. Accordingly, we 

reverse the Order of the trial court, and direct that judgment be entered in 

favor of Moran in the amount of $500,471.00.6 See Riley, 735 A.2d at 130 

(concluding that the trial court exceeded its review powers in determining 

that the appraisers and umpire violated their scope of authority, and that 

judgment must be re-entered in favor of the appellants); see also

 

6 As noted above, despite Sobeck’s apparent mistake in calculating the loss, 

we cannot vacate or modify an appraisal award based on a mistake. See 

Boulevard Assocs., 664 A.2d at 988; see also Patriotic Order Sons of 

America Hall Assoc. v. Hartford Fire Insur. Co., 157 A. 259, 261 (Pa. 

1931) (stating that “[a]n honest mistake of judgment in the conclusion of 

arbitrators which does not exceed the bounds of the submission is not, as a 

general rule, ground of impeachment of the award, whether the alleged 

mistake is one of fact or of law, or of both. ... Such errors are among the 

contingencies which parties assume when they select such tribunals.”).
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Boulevard Assocs., 664 A.2d at 988.7

Order reversed. Case remanded for entry of judgment in favor of 

Moran in the amount of $500,471.00. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/29/2015

 

7 Based upon our grant of relief on Erie’s first claim, we need not address its 

second claim on appeal.