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FLEISHER v. KAUFMAN (03/18/65)

decided: March 18, 1965.

FLEISHER
v.
KAUFMAN, APPELLANT



Appeal from order and judgment of County Court of Philadelphia, March T., 1963, No. 15351-A, in case of Mercer Fleisher v. Selwyn Kaufman.

COUNSEL

Gerald J. Cohen, with him John J. Connors, Jr., for appellant.

Bernard M. Gross, for appellee.

Ervin, P. J., Wright, Watkins, Montgomery, Flood, Jacobs, and Hoffman, JJ. Opinion by Flood, J. Dissenting Opinion by Wright, J.

Author: Flood

[ 206 Pa. Super. Page 379]

On April 24, 1964, the plaintiff, Mercer Fleisher, obtained an award in a personal injury suit, referred to compulsory arbitration under the Act of June 16, 1836, P. L. 715, as amended, January 14, 1952, P. L. (1951) 2087, and June 20, 1957, P. L. 336, § 1, 5 PS § 30. On April 27, 1964, the plaintiff's bill of costs in the amount of $43.75 was filed and served on the defendant but was improperly captioned as of "March Term, 1964" instead of "March Term, 1963". On April 30, 1964, the defendant filed exceptions to the bill of costs but repeated the incorrect caption "March Term, 1964" and the exceptions were not entered on the appearance docket until May 4, 1964. The plaintiff in turn filed exceptions to defendant's exceptions as untimely, under the requirement of Philadelphia Common Pleas Rule *308(c) (followed by the County Court) that they be filed within four days of service of plaintiff's

[ 206 Pa. Super. Page 380]

    bill of costs. No decision has been rendered by the prothonotary as to the bill of costs, or the exceptions, and the costs have not been taxed, and as we see it we do not have to decide whether the exceptions were timely filed.

On May 6, 1964, within the twenty day limitation fixed by statute, the defendant filed an appeal from the arbitrators' award but did not pay any of the record costs. The court below quashed defendant's appeal, relying upon § 27 of the Arbitration Act, supra, Act of June 16, 1836, P. L. 715, as amended, 5 PS § 71, Rule VI-A of the County Court of Philadelphia, and our opinion in Budde v. Sandler, 204 Pa. Superior Ct. 36, 39, 201 A.2d 247 (1964).

The court below also pointed out that the exceptions to the bill of costs were not filed within the four day period and therefore all objections to the bill were waived. Johnson v. Lake City Borough, 201 Pa. Superior Ct. 216, 191 A.2d 848 (1963). Whether under the circumstances the exceptions were timely filed, even though wrongly captioned, following the plaintiff's own earlier error, we need not decide.

The real basis of Judge O'Donnell's decision, as we read it, is in the following excerpt from his opinion:

"The defendant's appeal from the Arbitration Award was quashed, not because the bill of costs filed by the plaintiff had not been paid, but because all the record costs accrued to the time of the taking of the appeal had not been paid, as required by law and the Rule of this Court, which rule in this particular, as it must, substantially follows the statute making provisions for compulsory arbitration of certain claims."

With this we fully agree. There is no provision for taxing the statutory fees of the prothonotary or sheriff or for exceptions to such costs in Philadelphia except by ...


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