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SMITH CASE. (03/23/55)

March 23, 1955

SMITH CASE.


Original jurisdiction. No. 133, Miscellaneous Docket No. 10, in re application of Harvey A. Smith for writ of prohibition directed to Judges of Court of Common Pleas of Lancaster County. Substituted rule to show cause discharged.

COUNSEL

Robert Ruppin, for petitioner.

Paul A. Mueller, for respondents.

J. Campbell Brandon, amicus curiae.

Morton Meyers submitted a brief for Cambria County Bar Association under Rule 46.

Before Stern, C.j., Stearne, Jones, Bell, Chidsey and Musmanno, JJ.

Author: Stern

[ 381 Pa. Page 225]

OPINION BY MR. CHIEF JUSTICE HORACE STERN

The question for determination is the constitutionality of the Act of January 14, 1952, P.L. 2087, amending the Act of June 16, 1836, P.L. 715, and the validity of the Rule of Court (Rule 43) adopted in pursuance of this legislation by the Court of Common Pleas of Lancaster County.

The Act of June 16, 1836, P.L. 715, provided for an elaborate system of Reference and Arbitration. We are concerned here, however, only with those sections of the Act, 8 to 38 inclusive, which provided for compulsory arbitration. By those provisions it was made lawful "for either party in any civil suit or action ... to enter ... a rule of reference, wherein he shall declare his determination to have arbitrators chosen ... for the trial of all matters in variance in the suit between the parties." Arbitrators were thereupon to be selected in a manner prescribed by the Act, and it was

[ 381 Pa. Page 226]

    then their duty to proceed to determine the matters in controversy and to make an award, which award, when entered in the office of the prothonotary, should have the effect of a judgment. Each of the parties was given the right to appeal from the award to the court in which the cause was pending at the time the rule of reference was entered, but such appeal was subject to certain restrictions, one of which was that the party appealing should pay all the costs that had accrued in the action; there was a provision, however, that on presentation of an affidavit of poverty and consequent inability to pay the costs the party against whom the award was made, not being the party by whom the rule of reference was taken out, might be allowed to appeal without paying the costs. Another condition of the right of appeal was that the party appealing should enter into a recognizance the condition of which should be, if the plaintiff were the appellant, that if he did not recover a greater sum than the award of the arbitrators he would pay the costs that would accrue in consequence of the appeal and also one dollar for every day lost by the defendant in attending on the appeal; if the defendant were the appellant the condition of the recognizance was that, if the plaintiff obtained a judgment for a sum equal to or greater than the award of the arbitrators, he would pay the costs that would accrue in consequence of the appeal and also one dollar for every day lost by the plaintiff in attending on the appeal. The costs paid by either party could be recovered of the adverse party if, as the result of the suit, the appellant was entitled to recover costs under the provisions of the Act. The arbitrators were given the power to subpoena witnesses, books and documents, to issue attachments against witnesses neglecting or refusing to attend, to judge of the competency and credibility of witnesses

[ 381 Pa. Page 227]

    and the propriety of admitting any written evidence that might be offered, to administer oaths or affirmations to witnesses, and to decide both the law and facts involved in the case. For their services the arbitrators were each to receive the sum of one dollar for every day necessarily employed in the hearing, but only after they had made and filed their reports.*fn1

The Act of January 14, 1952, P.L. 2087, amended this Act of 1836 by adding a new section which provides, inter alia, that "The several courts of common pleas may, by rules of court, provide that all cases which are at issue where the amount in controversy shall be one thousand dollars ($1000) or less, except those involving title to real estate, shall first be submitted to and heard by a board of three (3) members of the bar of the county for consideration and award." Instead of the method provided in the original Act for the selection of arbitrators it was now provided that the board should be appointed by the prothonotary from the list of attorneys qualified to act, the names of attorneys to be taken from the list in alphabetical order, the first member named to be chairman of the board. The board is to make its report and render its award within twenty (20) days after hearing. The compensation of the arbitrators is to be determined by the court and paid by the county upon the filing of their report and award. Any party appealing must first repay to the county the fees of the arbitrators thus paid by the county, but such fees are not to be taxed as costs or be recoverable from the adverse party in any proceeding; in other words, they are not to follow the award. All appeals are to be de novo.

[ 381 Pa. Page 228]

The arbitrators are not required to make a record of the proceedings before them, but if any party desires a record the arbitrators shall provide a reporter and cause a record to be made and the party requesting the same shall pay the cost thereof.

In pursuance of the authority given by the Act the Court of Common Pleas of Lancaster County adopted a rule of court (Rule 43) providing, inter alia, that all cases at issue, where the amount in controversy is $500. or less, with the exception of certain actions which need not here be detailed, shall be submitted to, and be heard and decided by, Boards of Arbitration each consisting of three attorneys, members of the bar of the county. Each arbitrator is to receive as compensation for his services in each case a fee of $25., but in cases requiring hearings of unusual duration or involving questions of unusual complexity the court may allow additional compensation.

Harvey A. Smith, a resident of Lancaster County, filed in this court a petition for a writ directed to the judges of the Court of Common Pleas of that county prohibiting them from putting this rule into effect on the ground that both it and the statute authorizing it are unconstitutional. He alleged that he had brought suit in trespass to recover damages arising out of an automobile collision; that the amount of damages sought to be recovered was $249.19; that the action was at issue and had been listed for jury trial before the rule of court went into effect; that he desired to have his action tried by a jury; and that under the provisions of the statute and the rule he will be deprived of a jury trial except under "burdensome, oppressive ...


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