Pugar v. Greco

436 A.2d 215, 291 Pa. Super. 476, 1981 Pa. Super. LEXIS 3616
CourtSuperior Court of Pennsylvania
DecidedOctober 23, 1981
DocketNo. 412
StatusPublished

This text of 436 A.2d 215 (Pugar v. Greco) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Pugar v. Greco, 436 A.2d 215, 291 Pa. Super. 476, 1981 Pa. Super. LEXIS 3616 (Pa. Ct. App. 1981).

Opinions

SPAETH, Judge:

This is an appeal from an order denying a motion to quash an appeal from compulsory arbitration. We affirm.

This case has an extensive and unusual procedural history, which we must review in order to define the issue now before us.

On June 25, 1976, an automobile owned by appellee Barbara Pugar and driven by appellee Ina Brunwasser was involved in an accident with an automobile driven by appellant Dominic Greco. Pugar filed suit against Greco, claiming damages to her automobile of $127.40. Greco joined Brunwasser as an additional defendant. The case was re[478]*478ferred to compulsory arbitration, and on both claims—Pu-gar’s against Greco, and Greco’s against Brunwasser—the arbitrators found in favor of Greco. The arbitrators’ award was docketed on January 11, 1977.

Pugar and Brunwasser did not perfect an appeal from the arbitrators’ award. Instead, within the 20 day period then allowed for perfecting an appeal, they filed a motion with the lower court for permission to appeal without payment of additional costs. They claimed that in a case involving only $127.40, the requirement that in order to perfect their appeal they had to pay a $60 non-returnable arbitration fee chilled their constitutional right to a jury trial. The lower court denied this motion by an order dated January 28, 1977, but not docketed until February 1st. Pugar and Brunwasser appealed that order to this court. We granted Greco’s motion to quash the appeal as interlocutory. On allocatur, the Supreme Court affirmed our order. Pugar v. Greco, 483 Pa. 68, 394 A.2d 542 (1978).

Within 20 days of the Supreme Court’s decision, Pugar and Brunwasser paid the $60 arbitration fee and perfected their appeal from the arbitrators’ award. Greco moved to quash the appeal as untimely. He argued to the lower court, as he does to us, that Pugar’s and Brunwasser’s original motion to the lower court—their motion for permission to appeal from the arbitrators’ award without payment of the additional costs—did not operate to toll or extend the period for perfecting an appeal from an arbitration award, and that therefore the award had become final and unappealable. The lower court denied the motion to quash, and Greco filed this appeal.1

[479]*479The lower court said that it denied Greco’s motion to quash because it understood the Supreme Court’s opinion in Pugar v. Greco, supra, to say that if Pugar and Brunwasser paid the disputed fee, they could file an appeal from the arbitrators’ award and have a jury trial. We agree with the lower court’s understanding of the Supreme Court’s opinion. The critical part of that opinion said:

Appellants [Pugar and Brunwasser] are not “out of court,” either on the merits of the automobile accident claim or on the right to the jury trial question. Upon payment of the fee and costs appellants’ appeal from the adverse arbitrators’ award will proceed in the customary manner. If they or either of them should not succeed in that de novo trial, the alleged error in requiring the payment of the $60 fee as a condition of the ability to have a jury trial can be raised on appeal in the normal course, along with any other assignments of error.
Pugar v. Greco, supra, 483 Pa. at 74, 394 A.2d at 545 (emphasis added).

This is a specific description—a roadmap—of the course this case should follow. If we accepted appellant’s argument that by failing to appeal from the arbitrators’ award within 20 days Pugar and Brunwasser had forever lost their right to appeal, we should have to hold that this case had already become moot when the Supreme Court heard it and filed its opinion with the instructions we have just quoted.

Our duty, like that of the lower court, is to try to understand and follow the directions of the Supreme Court. However, we do not reach the result we do only because we believe it is required by the Supreme Court’s opinion; even without the guidance of that opinion we should reach the same result.

It is true that the general rule is that requesting reconsideration or some other form of relief—and that is what Pugar’s and Brunwasser’s motion for permission to appeal from the arbitrators’ award without payment of additional [480]*480costs represented—does not provide additional time for perfecting an appeal; the clock continues to run. See, e. g., Pa.R.A.P. 1701(b)(3). However, this rule is inapplicable here, for here Pugar’s and Brunwasser’s motion did not challenge an order of the lower court per se but instead, challenged the very appeal procedure itself.

The relevant paragraphs of appellees’ motion were as follows:

15. That in order to take the appeal [from the arbitrators’ award] your petitioners will be required to pay $60.00 arbitration fee which is not recoverable in the event the verdict of the arbitrators is reversed and will also be required to pay a jury fee and docketing costs.
16. That, as a result, the costs advanced in order to process the case are almost equal to the amount involved $127.40.
17. That to require the payment of $60.00, nonreturnable arbitration fee, in order to process to a jury trial or to a Judge trial a case involving $127.40 is a violation of due process of law and also an affirmative discouragement of the right to trial by jury as defined by Article 1, Section 6 of the Pennsylvania Constitution.
Stated another way, the costs in this case will deprive your petitioners of the right to a trial by jury or even the right to have the matter heard by a Judge and thus will make unavailable the constitutional right to have the court open for the redress of grievances.

This motion was filed within 20 days of the arbitrators’ award and was therefore timely. It squarely raised the issue of whether the non-returnable fee requirement incident to an appeal from compulsory arbitration impermissibly burdens the right to a jury trial provided by the Pennsylvania Constitution. In every respect except in name it was equivalent to an appeal.

Of course, in retrospect it may be said that instead of filing their motion for permission to appeal from the arbitrators’ award without payment of additional costs, Pugar and Brunwasser should have paid the $60 fee. However, their [481]*481decision not to pay the fee but instead to file their motion was based on the belief that once they paid the fee, they would forever lose their ability to challenge its constitutionality. We now know they were wrong, because the Supreme Court has told us so. Pugar v. Greco, supra, 483 Pa. at 74, 394 A.2d at 545. Nevertheless, their belief was not only reasonable but supported by authority. “Numerous cases hold that one who invokes, or acquiesces in, an unconstitutional enactment or proceeding is barred from asserting its invalidity; [citations omitted].” Montgomery County Bar Association v. Rinalducci, 329 Pa. 296, 298, 197 A. 924, 926 (1938).

Greco argues that Pugar and Brunwasser could and therefore should have appealed to this court within the 20 day period for appealing from the arbitrators’ award and thereby have stopped the clock. This argument is without merit.

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Bluebook (online)
436 A.2d 215, 291 Pa. Super. 476, 1981 Pa. Super. LEXIS 3616, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pugar-v-greco-pasuperct-1981.