J.A22039/14 

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 

CHARLES DAVIS III, : IN THE SUPERIOR COURT OF 

 : PENNSYLVANIA 

Appellant : 

: 

 v. : 

 : 

 : 

HARTFORD FIRE INSURANCE COMPANY, : 

 : 

 : No. 2274 MDA 2013 

Appeal from the Order Entered November 25, 2013 

In the Court of Common Pleas of Luzerne County 

Civil Division No(s).: 14077-2005 

BEFORE: PANELLA, SHOGAN, and FITZGERALD,*JJ.

MEMORANDUM BY FITZGERALD, J.: FILED SEPTEMBER 30, 2014 

Appellant, Charles David, III, takes this counseled appeal from the 

order entered in the Luzerne County Court of Common Pleas, denying his 

“Petition to Modify Underinsured Arbitration Award.” We agree with the trial 

court that it lacked jurisdiction under 42 Pa.C.S. § 5505 to hear the petition, 

filed five years after a prior order modified the arbitration award. 

Accordingly, we affirm. 

The procedural history of this car accident case is protracted; “the 

accident in question has resulted in court filings to no less than three 

interrelated docket numbers.” Trial Ct. Op., 1/30/14, at 1. On September 

 

*

 Former Justice specially assigned to the Superior Court. 
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9, 2005, Appellant, was driving a car in the course of his employment with 

Keystone Automotive Operations, Inc. (“Keystone”), was in a motor vehicle 

accident, and allegedly suffered injuries. The car was owned by Keystone.1

 

Appellee, Hartford Fire Insurance Company (“Hartford”), insured Keystone.

In December of 2005, at the instant trial docket, 14077-2005, 

Appellant filed a praecipe for a writ of summons and petition to appoint an 

arbitrator. The Honorable Joseph F. Sklarosky, Jr., presided over the instant 

matter. In October of 2007, an arbitration panel awarded $2,930,150 to 

Appellant. Hartford filed an application to modify the award, arguing there 

was a dispute as to whether Keystone’s policy had UIM coverage, and in the 

alternative that any policy had UIM limits of $2 million. The arbitration panel 

denied the application. 

Meanwhile, in March of 2007, Hartford filed a declaratory judgment 

action under a different docket, 2822-2007, seeking a declaration that 

Appellant could not recover under Keystone’s policy. The trial court informs 

us that this case is still pending in Luzerne County. Trial Ct. Op. at 2 n.4. 

Hartford then filed, under a third docket, 13910-2007, a petition to 

vacate or modify the arbitration award. On February 8, 2008, the Honorable 

Hugh Mundy granted Hartford’s petition and reduced the award to $2 

million. Appellant took no action and did not file an appeal.

 

1

 Keystone has filed an amicus curiae brief in this appeal. 
J. A22039/14 

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Five years and seven months later, on September 4, 2013, Appellant 

filed the instant “Petition to Modify Underinsured Arbitration Award,” under 

the instant docket, #14077. The petition averred the following. In May 

2012, Appellant served under the second docket, #2822, a request on 

Hartford for “copies of any excess insurance policies issued to Keystone.” 

Appellant’s Petit. to Modify Underinsured Arbitration Award, 9/4/13, at ¶ 15. 

In June 2012, Appellant received declaration pages for the following excess 

insurance coverage: 

Fireman’s Fund $25 million 

CNA $20 million 

St. Paul’s Traveler $5 million 

Id. at ¶ 16. The petition then averred, “Clearly, Hartford has been in 

possession of documents which showed that these excess and umbrella 

policies of insurance by ‘following the form’ of the underlying insurance 

would be available benefits in excess of the $2,000,000.00 limit owed by 

Hartford.” Id. at ¶ 17. Appellant requested the instant trial court to modify 

Judge Mundy’s 2008 order and reinstate the original award of $2,930,150 

with 6% interest. 

Hartford filed a response, arguing, inter alia: (1) the trial court lacked 

jurisdiction to hear Appellant’s petition under 42 Pa.C.S. § 5505 and § 7314; 

(2) the coordinate jurisdiction rule prevented the trial court from modifying 

Judge Mundy’s order; and (3) Hartford was not aware of the existence of 

additional excess insurance policies until discovery in docket #2822; and (4) 
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Hartford had no duty to Appellant to determine whether other insurance 

companies issued policies to his employer, Keystone. 

The trial court held a hearing on November 18, 2013, and denied 

Appellant’s petition on November 27th.2

 It reasoned the only relief 

requested was modification of Judge Mundy’s February 8, 2008 order, and 

the court lacked jurisdiction under Section 5505. Appellant took this timely 

appeal.3

For ease of disposition, we first set forth the relevant law and the trial 

court’s reasoning. Section 5505 of the Judicial Code, “Modification of 

orders,” states: “Except as otherwise provided or prescribed by law, a court 

upon notice to the parties may modify or rescind any order within 30 days

after its entry, notwithstanding the prior termination of any term of court, if 

 

2

 While the text of the order stated that it was entered November 25, 2013, 

the filing stamp on the order bears the date of November 27th, and a 

handwritten note on the order states, “Copies mailed 11-27-13.” Order, 

11/27/13. 

3

 On December 23, 2013, the trial court directed Appellant to “file of record” 

a Pa.R.A.P. 1925(b) statement within twenty-one days. Order, 12/23/13 

(emphasis in original). The trial court opinion states that Appellant mailed a 

1925(b) statement to the trial judge on or about January 6, 2014, but the 

statement was not time-stamped by the Prothonotary and not entered on 

the docket. There is no 1925(b) statement in the certified record. 

However, unlike other orders filed in this matter, the 1925(b) order 

does not bear a handwritten note that copies were mailed, and the 

corresponding docket entry likewise does not indicate the date and manner 

of service on the parties. Accordingly, we decline to find waiver for 

Appellant’s failure to file a 1925(b) statement with the court. See In re 

L.M., 923 A.2d 505, 509-10 (Pa. Super. 2007).
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no appeal from such order has been taken or allowed.” 42 Pa.C.S. § 5505 

(emphasis added). Section 5504, “Judicial extension of time,” provides: 

(a) General rule.—Except as provided in section 1722 

(c) (relating to time limitations) or in subsection (b) of this 

section, the time limited by this chapter shall not be 

extended by order, rule or otherwise. 

(b) Fraud.—The time limited by this chapter may be 

extended to relieve fraud or its equivalent, but there shall 

be no extension of time as a matter of indulgence or with 

respect to any criminal proceeding. 

42 Pa.C.S. § 5504. 

This Court has explained: 

Pursuant to 42 Pa.C.S.A. § 5505 . . . the trial court’s broad 

discretion to modify its orders ceases thirty days after the 

entry of an order, and thereafter the trial court may 

exercise discretion to modify an order only upon a showing 

of extrinsic fraud, lack of jurisdiction over the subject 

matter, a fatal defect apparent on the face of the record or 

some other evidence of “extraordinary cause justifying 

intervention by the court.” After the initial thirty-day 

period, a trial court may modify an order only to correct a 

clerical error or other formal error which is clear on the 

face of the record and which does not require an exercise 

of discretion. 

ISN Bank v. Rajaratnam, 83 A.3d 170, 172-73 (Pa. Super. 2013) 

(citations omitted). Pennsylvania Rule of Civil Procedure 1019(b) requires, 

“Averments of fraud or mistake shall be averred with particularity.” 

Pa.R.C.P. 1019(b). 

To establish a prima facie case of fraud, a plaintiff must 

show: 

(1) a representation; (2) which is material to the 

transaction at hand; (3) made falsely, with 
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knowledge of its falsity or recklessness as to whether 

it is true or false; (4) with the intent of misleading

another into relying on it; (5) justifiable reliance on 

the misrepresentation; and (6) the resulting injury 

was proximately caused by the reliance. 

Kostryckyj v. Pentron Lab. Techs., LLC, 52 A.3d 333, 338 (Pa. Super. 

2012) (citation omitted). 

In the case sub judice, the trial court reasoned the following. Although 

Appellant captioned his September 4, 2013, petition as one “to modify an 

underinsured arbitration award, a review of the pleading, prayer for relief, 

and record demonstrates [he] seeks an order modifying Judge Mundy’s” 

February 8, 2008 order. Trial Ct. Op. at 1 n.1, 3. Furthermore, while 

Appellant argued the trial court could modify Judge Mundy’s order pursuant 

to Section 5505, Appellant fail to consider Section 5504, “which specifically 

limits the Court’s authority with respect to time limited by [Section 5505], 

absent fraud or its equivalent.[ ]” Id. at 4-5 (emphasis in original). 

Appellant’s petition “fail[ed] to aver elements of fraud or its equivalent” and 

offer[ed] no averment[s] that set forth sufficient facts to 

conclude Hartford made a material misrepresentation to 

anyone, including Judge Mundy. [Appellant] simply offers 

his opinion in paragraph 17 that Hartford “ . . . had been in 

possession of documents which showed the excess policies 

. . . ” without reference to time, place, person, any 

particular document, or reason why Hartford was or would 

have been in possession of the excess policy information,

where the policies at issue were not otherwise 

underwritten by Hartford. 

Id. at 6. The trial court further found that Appellant “fail[ed] to plead any 

averment[s] or produce any evidence demonstrating the ‘grave and 
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compelling circumstances’ required to meet the threshold.” Id.

In the instant appeal, Appellant presents one issue for our review: 

whether “the trial court abused its discretion in refusing to modify the 

underinsured motorist arbitration award.” Appellant’s Brief at 4. He avers 

the court “erred by holding [his] request for relief was based upon a theory 

of fraud and that only evidence of fraud could suffice to modify Judge 

Mundy’s Order[.]” Id. at 12. Appellant contends the basis for his petition 

was not fraud, but instead was “the mistaken belief that the UIM coverage 

was limited to two million dollars[.]” Id. He then reasons that the trial 

court had broad discretion to modify or rescind the prior order under Section 

5505. In support, Appellant asserts extraordinary circumstances justified 

modification of the order: again, Judge Mundy’s acceptance of Hartford’s 

representation that coverage was limited to $2 million. We find no relief is 

due. 

A careful review of Appellant’s argument reveals a misunderstanding 

of not only the applicable law, but also of the trial court’s opinion. The trial 

court did not proceed on a premise that he was alleging fraud; indeed, the 

crux of the court’s analysis was that Appellant failed to aver fraud. We 

agree with the court’s cogent reasoning that because Appellant failed to aver 

fraud or other extraordinary cause under Section 5504, the court could not 

extend the thirty-day period set forth in Section Section 5505. See 42 

Pa.C.S. §§ 5504, 5505; ISN Bank, 83 A.3d at 172-73. Appellant does not 
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deny that he did not aver fraud. Again, he emphasizes on appeal that he did 

not. 

Furthermore, we reject Appellant’s rationale that Judge Mundy’s 

acceptance of Hartford’s representation that coverage was limited to $2 

million was an “extraordinary justification,” where the court had a “mistaken 

and honest belief as to the extent of available insurance coverage.” See

Appellant’s Brief at 14. As stated above, one of the contested issues in this 

matter was the amount of UIM coverage in Keystone’s policy with Hartford. 

Finally, where the trial court properly noted that the three additional 

insurance policies were issued “by insurers other than Hartford,” we note 

that Appellant petition to modify failed to explain why the existence of other 

insurance companies’ policies rendered Hartford liable for additional 

payment. See Trial Ct. Op. at 3 (emphasis in original). 

Appellant has presented no meritorious claim for relief, and we affirm 

the order denying his petition on the ground that the court lacked 

jurisdiction under Section 5505 to modify a five-year old order issued under 

another docket. 

Order affirmed. 

Judgment Entered. 

Joseph D. Seletyn, Esq. 

Prothonotary 

Date: 9/30/2014