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KLUGMAN ET VIR v. GIMBEL BROTHERS (06/13/62)

June 13, 1962

KLUGMAN ET VIR, APPELLANTS,
v.
GIMBEL BROTHERS, INC.



Appeal, No. 432, Oct. T., 1961, from orders of County Court of Philadelphia, March T., 1959, No. 4437, in case of Marion Klugman et vir v. Gimbel Brothers, Inc. et al. Orders reversed.

COUNSEL

Ernest Ray White, for plaintiffs, appellants.

Albert C. Gekoski, for defendant, appellee.

Edward B. Joseph, with him David F. Kaliner, for additional defendant, appellee.

Before Rhodes, P.j., Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ.

Author: Flood

[ 198 Pa. Super. Page 270]

OPINION BY FLOOD, J.

In this case compulsory arbitration proceedings before three members of the bar resulted in an award for the wife-plaintiff against the original defendant, and for the latter over against the additional defendant. The additional defendant alone appealed and the plaintiff entered judgment on the award against the original defendant. During the second term after the entry of the judgment the court below permitted the original defendant to join in the appeal of the additional defendant and the plaintiff was thereafter, over protest, required to retry her case de novo. She has appealed from orders of the court below dismissing her exceptions to a decision of the trial judge in favor of the original defendant and entering judgment for that defendant.

[ 198 Pa. Super. Page 271]

The question before us is whether the court had the power thus to nullify plaintiff's judgment after the term had expired and give the original defendant the opportunity to relitigate an award which it had not appealed within the time limited by the statute.

The plaintiffs, husband and wife, originally sued Gimbel Brothers, Inc. in assumpsit for breach of warranty alleging that the wife-plaintiff sustained injuries from defective glassware which she had purchased from the defendant. Gimbel Brothers brought in the supplier, Anchor Hocking Glass Corp., as an additional defendant, alleging that, if any liability existed, Anchor Hocking was alone liable to the plaintiffs or was liable over to the defendant because it impliedly had warranted to the wife-plaintiff and to the defendant that the glassware was free of defects. The case was submitted to arbitration in accordance with rules of the Municipal Court (now County Court) of Philadelphia, adopted pursuant to the Act of June 20, 1957, P.L. 336, § 1, 5 PS § 30, which extended to that court the right previously given to the "several courts of common pleas" by "rules of court" to provide that certain cases should first be submitted to arbitration by boards or panels of attorneys. See § 8.1 of the Act of June 16, 1836, P.L. 715, which was added by § 1 of the Act of January 14, 1952, P.L. (1951) 2087, 5 PS § 30.

On November 15, 1959, the arbitrators filed a report and award containing findings (1) for the wife-plaintiff in the sum of $400 against Gimbels, (2) for Gimbels in the sum of $400 against Anchor Hocking, and (3) for Gimbels and Anchor Hocking against the husband-plaintiff. On November 30, 1959, Anchor Hocking filed an appeal from the award. Gimbels did not file an appeal, and on December 11, 1959, after the statutory appeal period had ...


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