233 Pa. Super. 119 | Pa. Super. Ct. | 1975
Lead Opinion
Opinion by
Appellants contend that the lower court erred in refusing to vacate the judgment entered against appellant Harry E. Stockline pursuant to an award of arbitrators, where it appeared that appellant City of Pittsburgh had taken a timely appeal from the award of arbitrators with the intent that it be effective for both parties.
Appellee, plaintiff below, was allegedly injured in a collision with a truck driven by appellant Stockline, an employee of the City of Pittsburgh who was driving a truck owned by the City of Pittsburgh, on the night of January 21, 1971. Appellee alleges that appellant Stock-line operated the truck in a negligent manner; appellant City of Pittsburgh can only be liable vicariously under the theory of respondeat superior: In November, 1972, appellee brought an action in trespass in the Court of Common Pleas of Allegheny County. At a pretrial conference, the parties agreed to submit the case to arbi
When an appeal is taken from an arbitration conducted pursuant to the Act of June 16, 1836, supra, §8.1, the party appealing is entitled to a jury trial de novo. Act of June 16, 1836, supra, as amended, §27 (V), 5 P.S. §71 (V). This right to a jury trial de novo is mandated by the Pennsylvania Constitution, Art. I,- sec. 6. Smith Case, 381 Pa. 223, 112 A. 2d 625 (1955), appeal dismissed, 350 U.S. 858. In order to maintain the appealing party’s right to a jury trial on all issues involved in the case, his appeal may in certain cases carry with it
“It has long been the law in this Commonwealth that where a board of arbitrators finds two or more defendants jointly liable, an appeal from the arbitrators’ award taken by only one defendant will not be considered an appeal by all defendants unless it appears that this was the intention of the appealing party.” Flouders v. Foster, 212 Pa. Superior Ct. 418, 420, 243 A. 2d 146, 147 (1968) (emphasis supplied).
The order of the lower court is reversed and the case remanded for further proceedings consistent with this opinion.
Watkins, P.J., and Jacobs, J., dissent.
. Appellee makes reference in its brief to the fact that appellants’ petition was not formally filed until the day after the lower court entered its order. Nevertheless, appellee responded to this petition with its own unfiled answer, and the court below issued an order and opinion on the merits after considering the two unfiled petitions. As appellee apparently waived this procedural defect below, it cannot take advantage of it on appeal. Both the petition and answer have been incorporated in the record presented to this Court, by stipulation of the parties. The question of whether the appellants should specifically have petitioned the lower court for a rule on appellee to show cause why the judgment should not he stricken has not been raised on appeal.
. Note that it is the intent of the appealing party which is critical.
. Appellee argues, without citing any authority, that although municipalities need not pay costs or post bond when appealing from an arbitration, their employees must do so. The lower court, on remand, may order the payment of such additional appeal costs as may be due.
Concurrence Opinion
Concurring Opinion by
I must respectfully disagree with the Majority’s rationale. The case law concerning appeals nunc pro tunc from compulsory arbitration is rapidly complicating this area of jurisprudence. Our courts have stated: “[i]t is settled law that the mere appeal of one defendant in compulsory arbitration is of no avail to another defendant, so that a judgment entered after the lapse of appeal time will not be opened or stricken.” Fante v. Philadelphia Transportation Company, 222 Pa. Superior Ct. 276, 277, 294 A.2d 776 (1972). However, this general rule is weakened by exceptions developed on a case by case basis. These exceptions have been less than clear, leading to uncertain results. This method is not calculated to promote uniformity nor to insure equal and fair treat
A review of the record indicates that appellee-plaintiff brought suit for damages against the City of Pittsburgh (City) and Harry E. Stockline, a City employee. The complaint arose when appellee’s car was struck by a City truck attempting to make a U-turn. The truck was driven by Stockline. The case was submitted to arbitration and on April 22, 1974, appellee received an award for $6,000 against both defendants. Subsequently, an appeal was filed by the City, but no appeal was filed for Harry E. Stockline. On May 17, 1974, judgment was entered on the award for appellee-plaintiff against defendant Stock-line. An unfiled petition to vacate judgment and for leave to appeal nunc pro tunc was then presented to the court by defendant Stockline. The lower court denied the petition, and defendant then filed his petition and appealed.
As indicated above, the decisions to date have tended to look with disfavor upon defendants who have not appealed within the statutory period, but who nevertheless base their right to be joined in a trial de novo on the fact that another defendant has perfected his appeal. The courts have largely refused to accept the notion that an appeal by one party acts as an appeal by all parties. See Delmarmol v. Fidelity and Deposit Company of Maryland, 225 Pa. Superior Ct. 90, 310 A.2d 363 (1973); Fante v. Philadelphia Transportation Company, supra; Flouders v. Foster, 212 Pa. Superior Ct. 418, 243 A.2d 146 (1968); Romanovich v. Hilferty, 212 Pa. Superior Ct. 570, 245 A.2d 701 (1968); Klugman v. Gimbel Brothers, Inc., 198 Pa. Superior Ct. 268, 182 A.2d 223 (1962).
Notwithstanding the general rule, this court has stated the very broad exception that appeals by one of several defendants will operate as appeals by all defendants where it appears that this was the intention of the
In the instant case, the complaint against the City was based on the theory of respondeat superior, and counsel for the City also represented defendant Stockline. Under such circumstances, it is reasonable to conclude that the appeal was intended for both defendants. Also, defendant Stockline, through the City’s attorneys, presented a timely petition to vacate the judgment and file an appeal nunc pro tunc. These facts should bring the present case within the ambit of the general exception.
In addition, this court allowed the appeal of a defendant to operate also as an appeal by additional defendant in Hammerman v. Lee, 207 Pa. Superior Ct. 370, 217 A.2d 853 (1966). In that case, the plaintiff’s judgment, entered against the additional defendant who failed to file a timely appeal, was stricken. The various defendants filed an affidavit stating that their intention was that the single appeal would operate as to all of them and that additional defendant had paid one half the appeal costs. In addition, the court determined that the appeal must apply to all because the arbitrators’ finding of joint and several liability was adverse to defendants’ contention that additional defendant was solely liable.
In Portock v. Philadelphia Transportation Company, 203 Pa. Superior Ct. 385, 198 A.2d 617 (1964), this court also allowed a single appeal to operate for the benefit of all defendants. The court based its decision on an interpre
These cases point out the problems facing our courts when we deal with this type of appeal from compulsory arbitration. We should not condone and support practices which are unnecessarily confusing and inconsistent. A change to a system wherein one timely appeal from a compulsory arbitration award includes all parties and issues in the appeal would not work a hardship on any party. All involved would get their “day in court,” and all issues would be reviewed by the court on appeal. Any time one party makes a timely appeal from a compulsory arbitration award, the result should be a trial de novo involving all parties.
As does the Majority of the court, in the instant case, I too would reverse the order of the lower court and allow the appeal to apply to all parties.
