Mikita v. Bailey Homes, Inc.

401 A.2d 1367, 265 Pa. Super. 399, 1979 Pa. Super. LEXIS 2102

• Court: Superior Court of Pennsylvania
• Decided: April 19, 1979
• Docket: 557 and 558
• Status: Published

Opinions

HESTER, Judge:

There is no division in this court as to the appeal of Peter Mikita, et ux. filed at numbers 557 and 558 April Term, 1978. After taking an appeal from the Arbitrators’ Award, Mikitas took no further action. Notice of said appeal was not served upon the opposing party. This was in complete disregard of the requirements of Rule No. 306(a)(1) of the Allegheny County Rules of Civil Procedure. Our reasoning is completely set forth in the dissenting opinion of Price, J. We will affirm the orders of the court below which quashed this appeal.

As to the appeal of Builders Supply Company, Inc. at No. 662 April Term, 1978, the appeal from the Arbitrators’ Award was filed October 6, 1977. On October 7, 1977, counsel for Builders notified opposing counsel of said appeal by mail. Said notice stated:

“This is to advise you that I filed an appeal on October 6, 1977, from the award of the Board of Arbitrators in the above case.

“I have requested a non-jury trial and we will be notified as soon as the case is placed on the next non-jury trial list.”

Rule. No. 306(a)(1) of the Allegheny County Rules of Civil Procedure requires that a copy of the Notice of Appeal be served upon the adverse party or his counsel. The court below quashed the appeal alleging non-compliance with said rule. We are of the opinion there has been substantial compliance with the provisions of said rule and that the matter should be tried on the merits.

This court as well as our Supreme Court has always followed the precept that substantial compliance with the statutory requirements of the act of 1836 relating to the taking of appeals would be sufficient.

In Black and Brown, Inc. v. Home for Accepted, Inc., 233 Pa.Super. 518, 335 A.2d 722 (1975), the appellant caused an appeal to be taken from an Arbitrators’ Award but neglected to pay accrued costs to appellee prior to the expiration of the appeal period. The lower court quashed the appeal and this court sustained, holding (page 724):

“The lower court in the instant case distinguished Meta from the facts of this case since there was no attempt by appellant in this case to pay any costs during the appeal period. In our review of the instant appeal we find significant the fact that no timely attempt to tender costs was made by appellant, despite express notice of the requirement that this be done.

Our recognition in this regard leads us to conclude that the holding in Meta must be overruled insofar as it declares that the statutory requirement of the payment of costs in this type of appeal is directory rather than mandatory. We simply cannot condone a complete refusal and failure to pay the record costs in an appeal from arbitration.

Both the majority and minority views in Meta, supra,¹ recognized the harshness of denying a party a right of appeal when he mistakenly paid ten ($10.00) dollars in record costs, rather than the actual record costs of seventeen dollars and seventy-five cents ($17.75). The majority pointed out that in other cases, our Court has followed a principle of the sufficiency of substantial compliance. We now adopt that rationale and hold that the requirement that record costs be paid during the appeal period is mandatory — but with the caveat that a valid attempt to make such timely and full payment, coupled with substantial though incomplete compliance with the requirement should not result in the harsh finality of an order quashing an appeal from arbitration. Rather, our courts should examine the appellant’s attempts at compliance in order to determine whether an honest effort has been made to meet the requirements of the statute. Our overruling of the holding of Meta applies also to its progeny. (See e. g.: Holmes v. Broodno, 222 Pa.Super. 478, 294 A.2d 903 (1972)).

Lastly, returning to the facts of the instant appeal, we find no attempt at substantial compliance by appellant, but rather a situation where no semblance of compliance exists.”

In Beth-Allen Sales Co. v. Hartford Insurance Group, 217 Pa.Super. 42, 268 A.2d 203 (1970), the appellant filed an appeal from the Award of the Arbitrators. Said appeal was perfected in all respects with the exception that appellant posted the sum of $50 with the Prothonotary, who noted on the docket: “Cash bond in the sum of $50.00 deposited with the Prothonotary”. The lower court quashed said appeal on the ground that the appellant had failed to file a recognizance with sufficient surety within the 20-day period as required by the Act of 1836. In reversing, this court held (page 206 of 268 A.2d 203):

“We conclude, that the ‘bond’ or ‘recognizance’ noted on the docket was defective in that it did not set forth all of the conditions of a proper recognizance. As we noted in Gable v. Chintala,2 however, the established practice is to permit the filing of an amended recognizance non pro tunc and not to dismiss the appeal in such circumstances. This decision is based on the belief that where a party has made an honest effort to file his appeal in accordance with the statute, and has substantially complied with the requirements, justice will not permit his appeal to be dismissed with prejudice. See Cochran v. Parker, [6 S & R 549 (1821)]. (Emphasis supplied)

And further, on page 206:

“ . . . Here, plaintiff in good faith took his appeal and filed a ‘bond’ which, in his opinion, complied with the requirements for perfecting the appeal. Although the recognizance, was defective in various respects, its purpose, in light of the statutory framework was obvious and its obligation understood. To quash the appeal in these circumstances would result in a return to the supremacy of form over substance and the exaltation of technical detail over justice, an approach which courts in all areas have been opposing for many years.” (Emphasis supplied)

Justice therefore requires a procedure which ensures that an appellee will receive adequate notice of the filing of an appeal. In Meade v. Equitable Credit & Discount Co., 190 Pa.Super. 561, 155 A.2d 386 (1959), and Morrison v. Union National Bank, 244 Pa.Super. 634, 371 A.2d 1310 (1977), appellants did not serve either appellees or their counsel with a copy of the notice of appeal. Those opinions have no application to the within fact situation. Here, the attorney for Builders notified the counsel for the adverse party that:

“This is to advise you that I filed, an appeal on October 6, 1977, from the award of the Board of Arbitrators in the above case.”

I am of the opinion that this constitutes substantial compliance with the statutory requirements of the Act of 1836 relating to the taking of appeals as well as the requirements of Rule 306(a)(1) of the Allegheny County Court of Common Pleas.

As this court stated in Black and Brown v. Home for Accepted (supra), “our court has followed a principal of the sufficiency of substantial compliance. We now adopt that rationale . . . substantial though incomplete compliance with the requirement should not result in the harsh finality of an order quashing an appeal from arbitration . our courts should examine the appellant’s attempts at compliance ... to determine whether an honest effort has been made to meet the requirements of the statute.”

I have examined the attempt of the appellant Builders Supply Co. to meet the requirements of the Rule and Statute. I conclude they have substantially complied therewith and justice should not permit this appeal to be dismissed with prejudice.

As to the appeal of Builders Supply Company, at No. 662 April Term, 1978, the order of the court below is reversed and remanded for a trial upon the merits.

As to the appeal of Peter Mikita, et ux. at Nos. 557 and 558 April Term, 1978, the orders of the court below are affirmed.

PRICE, J., files a dissenting opinion.

1 . Meta v. Yellow Cab Company of Philadelphia, 222 Pa.Super. 469, 294 A.2d 898 (1972).

2 . Gable v. Chintala, 212 Pa.Super. 471, 243 A.2d 487 (1968).