Werner v. Springfield Dodge, Inc.

384 A.2d 952, 253 Pa. Super. 14, 1978 Pa. Super. LEXIS 2773

• Court: Superior Court of Pennsylvania
• Decided: April 13, 1978
• Docket: 1199
• Status: Published

Opinions

JACOBS, President Judge:

This is an appeal from the order of the lower court refusing to open the judgment entered against appellant . Springfield Dodge, Inc., pursuant to an award of arbitrators. We affirm.

Appellee Margaret M. Brown Werner, plaintiff below, filed a complaint in assumpsit against Springfield Dodge, Inc., and Chrysler Corporation on February 21, 1974. The case was referred to arbitration,¹ and on June 1, 1976, an award was entered for appellee in the amount of $3,460.70 against both defendants. On June 20, 1976, Chrysler filed a timely appeal from the arbitrators’ award and paid the costs in connection therewith. No appeal, however, was taken by Springfield Dodge.

Subsequently, on August 26, 1976, appellee notified appellant of her intention to institute execution proceedings. Appellee filed a praecipe for a writ of execution, and the writ was issued on September 20, 1976. Accordingly, the Sheriff of Delaware County levied against appellant’s property.

Appellant filed its petition to open judgment on November 3, 1976, alleging, inter alia, that it had relied upon Chrysler’s appeal as being an appeal of the entire action. This appeal followed Judge Labrum’s order of February 10, 1977, denying that petition.

“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.Super. 418, 420, 243 A.2d 146, 147 (1968) (Emphasis supplied.) See also Mitchell v. Pittsburgh, 233 Pa.Super. 119, 335 A.2d 403 (1975); Hammerman v. Lee, 207 Pa.Super. 370, 217 A.2d 853 (1966). Here, the arbitrators made only one award against both defendants, and Chrysler took its appeal from “the award of the arbitrators.” However, counsel for Chrysler filed an affidavit,² dated August 24, 1976, in which the following language appears:

“4. that upon instructions from my client I filed an appeal from the award of arbitrators on behalf of Chrysler Corporation only;

“5. that the appeal on behalf of Chrysler Corporation was filed within the appropriate time period;

“6. that the defendant, Springfield Dodge, did not pay xh of the appeal costs;

“7. that counsel for Springfield Dodge did not communicate to me any intention to appeal on behalf of Springfield Dodge or to have the appeal on behalf of Chrysler Corporation be effective in favor of Springfield Dodge;

“8. that counsel for Springfield Dodge was advised on June 16, 1976, of my intention to file an appeal on behalf of Chrysler Corporation;

“9. that on June 18, 1976, counsel for Springfield Dodge advised my office that there were no record costs which would have to be paid by Chrysler Corporation to Springfield Dodge in order to perfect Chrysler Corporation’s appeal; and

“10. that at no time was it ever my intention to file an appeal on behalf of Springfield Dodge or have the appeal filed on behalf of Chrysler Corporation to be effective as an appeal on behalf of Springfield Dodge.”

Since the present record clearly indicates that Chrysler did not intend its appeal to include that of appellant Springfield Dodge, we find no error in the lower court’s refusal to open judgment.³

Order affirmed.

PRICE, J., files a dissenting opinion. WATKINS, former President Judge, did not participate in the consideration or decision of this case.

1 . Compulsory arbitration is provided for by 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 (Supp.1977-78).

2 . Appellee attached this affidavit to her answer to the petition to open judgment.

3 . For an exhaustive consideration of the effect of an appeal by only one of several parties in a compulsory arbitration case, see Oler, Compulsory Arbitration in Pennsylvania, 48 Pa.B.A.Q. 557 (1977).