Mitchell v. Pittsburgh

335 A.2d 403, 233 Pa. Super. 119, 1975 Pa. Super. LEXIS 1437

• Court: Superior Court of Pennsylvania
• Decided: March 31, 1975
• Docket: Appeal, No. 466
• Status: Published

Opinions

Opinion by

Hoffman, J.,

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 arbitration, and on January 4, 1974, the case was ordered to arbitration pursuant to the Act of June 16, 1836, P.L. 715, §8.1, added January 14, 1952, P.L. (1951) 2087, §1, as amended, 5 P.S. §30. On April 22, 1974, a panel of three arbitrators entered an “award for plaintiff in the amount of $6,000 against both defendants.” On May 13, 1974, appellant City of Pittsburgh took an appeal “from the award of the Arbitrators.” On May 17, 1974, appellee entered a judgment of $6,000 against appellant Stockline on the award of the arbitrators. A notice of judgment was mailed the same day. On May 22, 1974, appellants prepared a petition to vacate the judgment and allow an appeal nunc pro tunc. This petition and ap-pellee’s answer were presented to the lower court, which denied the motion on June 10, 1974.¹ This appeal followed.

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 other parties to the arbitration who have not technically filed appeals. See, e.g., Washik v. Chase, 231 Pa. Superior Ct. 378, 332 A. 2d 481 (1974); Portock v. Philadelphia Transportation Co., 203 Pa. Superior Ct. 385, 198 A. 2d 617 (1964).

“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).² See also Washik v. Chase, supra, 231 Pa. Superior Ct. at 382, n. 2, 332 A. 2d at 483, n. 2. When a timely appeal has been filed by one of the joint defendants, and it appears that it was his intention that the appeal carry with it another defendant who had not filed a timely appeal, the lower court, on motion, should strike a judgment entered on the arbitration award against the non-appealing defendant and allow that defendant to participate in the trial de novo. Hammerman v. Lee, 207 Pa. Superior Ct. 370, 217 A. 2d 853 (1966). The record below indicates that appellant City of Pittsburgh intended its appeal to include the appeal of appellant Stockline and that the principle of Hammerman v. Lee, supra, should apply. Here, as in Hammerman, the party appealing from the arbitration filed an affidavit stating that it intended its appeal to be effective for both parties. The arbitrators made only one award against both defendants, and the appealing party took its appeal from “the award of the arbitrators.” In Hammerman, additional evidence of the appealing defendant’s intent to carry with it the second defendant was provided by the two defendants sharing the cost of the appeal. Here, both defendants were represented by the same attorneys from the Pittsburgh solicitor’s office, who, in taking this appeal from the arbitration, presumably intended to act in the interest of both appellants.³ As the appeal in the instant case was taken before ap-pellee entered judgment against appellant Stockline, “at the time judgment was entered, the proceedings before the arbitrators were superseded and the matter was before the court de novo. Thus the judgment was improperly entered” and should have been stricken by the lower court. Hammerman v. Lee, supra, 207 Pa. Superior Ct. at 372, 217 A. 2d at 854.

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.

1 . 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.

2 . Note that it is the intent of the appealing party which is critical.

3 . 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.