Appeal, No. 17, April T., 1963, from judgment of Court of Common Pleas of Erie County, Feb. T., 1961, No. 188, in case of Cheri Lynn Johnson, a minor, by Richard E. Johnson et al. v. The Borough of Lake City. Judgment affirmed.
John A. Spaeder, with him Marsh, Spaeder, Baur, Spaeder & Schaaf, for appellants.
John M. McLaughlin, with him Knox, Weber, Pearson & McLaughlin, for appellee.
Before Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ. (rhodes, P.j., absent).
[ 201 Pa. Super. Page 218]
From a finding for the defendant by three lawyer-arbitrators the plaintiffs appealed to the court of common pleas pursuant to § 27 of the Arbitration Act of June 16, 1836, P.L. 715, as amended by the Act of March 15, 1956, P.L. 1279, § 1, 5 PS § 71. The appeal was quashed because of the appellants' failure to pay the defendant's bill of costs. Later the court reinstated the appeal as to the claim of the minor because the appeal of a minor may not be conditioned upon payment of costs. Arbitration Act of June 16, 1836, P.L. 715, § 31, 5 PS § 76. The parents, in their appeal to this court, contend that (1) the bill of costs contains charges for witnesses whose testimony was known before the trial to be incompetent, irrelevant and immaterial and (2) since the appeal could not be quashed as to the minors it should not have been quashed as to the parents' suit in their own right.
1. The procedure for attacking a bill of costs is governed in Erie County by Rule 701(B) of the Court of Common Pleas of the county. Under this rule a party who fails to file exceptions within four days after the bill is served upon him waives all objections to it. The plaintiffs failed to file exceptions in accordance with the rule and the common pleas court's decision that they have waived any objection to the
[ 201 Pa. Super. Page 219]
bill is conclusive upon appeal in the absence of error of law or irregularities of procedure. Trimble v. Reserve Township, 42 Pa. Superior Ct. 593 (1910). "Where, however, the adjudication complained of relates to the number and materiality of the witnesses in attendance, the length of time they were in attendance, the number of miles traveled by them or by the officer or other person serving the subpoena, and similar matters of fact, it is ordinarily conclusive and not reviewable on appeal, for the obvious reason that the evidence upon which it was based is not brought up with the record." Hartley v. Weideman, 28 Pa. Superior Ct. 50, 53 (1905).
In this case no record was made of the hearing before the arbitrators. The defendant's counsel, in his affidavit to the bill of costs, said that the witnesses, Mrs. Billings and Mr. Tome, were material and necessary. The plaintiffs, in their motion to strike the bill of costs, averred that although these two witnesses were present, neither of them testified because the arbitrators ruled that the testimony proposed to be offered through them was incompetent, irrelevant and immaterial. The defendant in its answer to the motion replied that the witnesses were summoned "in anticipation of... Ruth L. Johnson [the mother-plaintiff] testifying at the hearing", that they were prepared to testify that Mrs. Johnson had attempted to suborn perjury in regard to testimony to be offered in the lawsuit, that the defendant's counsel communicated his intention to the plaintiffs' counsel before the hearing and that he also communicated it to the arbitrators out of the hearing of any parties or witnesses, that plaintiffs' counsel did not put Mrs. Johnson on the stand and there was therefore no basis for impeaching her credibility by these witnesses.
The plaintiffs in their brief further state that Mrs. Billings' testimony was to be that ...