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MADRID MOTOR CORPORATION v. CASHAN (ET AL. (09/16/65)

decided: September 16, 1965.

MADRID MOTOR CORPORATION
v.
CASHAN (ET AL., APPELLANT)



Appeal from order and judgment of County Court of Philadelphia, March T., 1961, No. 11127-B, in case of Madrid Motor Corporation v. Bartholomew Cashan et al.

COUNSEL

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

Michael F. Beausang, Jr., with him Donald W. Kramer and William M. Marutani, for appellee.

Ervin, P. J., Wright, Watkins, Montgomery, Flood, Jacobs, and Hoffman, JJ. Opinion by Flood, J. Wright, J., dissents for the reasons set forth in his dissenting opinion in the case of Fleisher v. Kaufman, Author: Flood

[ 206 Pa. Super. Page 385]

This action in trespass is for property damages to plaintiff's automobile arising from an accident on April 9, 1960. On August 18, 1961, judgment by default was entered in favor of the plaintiff and against the defendant. On March 22, 1962, the court assessed damages for the plaintiff in the sum of $1120.

On April 17, 1962, the Wissahickon Mutual Casualty Company was summoned as garnishee, on which date interrogatories in attachment were duly served on the garnishee. After exhaustive pretrial discovery, the action against the garnishee, being at issue, was referred to compulsory arbitration. On October 2, 1962, the arbitrators' report was filed with the prothonotary awarding the plaintiff the sum of $1120, with interest of $33.60, against the garnishee.

When the case was called for trial, on October 22, 1964, plaintiff moved to quash the garnishee's appeal from the arbitrators' award on the ground that it was defective because the record costs that had accrued to the time of the appeal had not been paid. Plaintiff's motion to quash the appeal was granted and the trial judge affirmed the award of the arbitrators and entered judgment for the plaintiff against the garnishee in the sum of $1153.60, with interest from October 2, 1962.

Plaintiff's motion to quash garnishee's appeal from the arbitrators' award for failure to pay all costs accrued

[ 206 Pa. Super. Page 386]

    to the date of the appeal is based upon § 27 of the Arbitration Act of June 16, 1836, P. L. 715, as amended January 14, 1952, P. L. (1951) 2087, § 4; and March 15, 1956, P. L. (1955) 1279, § 1, and Philadelphia County Court Rule VI A, pertaining to appeals from arbitration awards.

The fees paid by the garnishee on taking the appeal from the award of arbitration merely covered the cost of filing the appeal and the jury fee. The notation stamped on the notice of appeal, "All record costs to date paid", is untrue and such fact is of no assistance to the garnishee as it paid none of the record costs.

It was the obligation of the garnishee to make payment of all accrued costs to perfect the appeal, therefore, garnishee cannot complain because of its own neglect and failure to comply with the statute and court rule. Also, the garnishee was not harmed or even misled by the use of this "stamp" because it knew that it did not pay any of the accrued record costs. Budde v. Sandler, 204 Pa. Superior Ct. 36, 201 A.2d 247 (1964).

Accrued record costs include all record costs, namely, costs paid by the plaintiff to the prothonotary and to the sheriff, such as fees for filing and service of this complaint, fees for filing and service of the writ of attachment summoning the garnishee, discovery costs, notary fees for various affidavits filed of record, and fees for subpoenaes to bring witnesses to arbitration hearings. The purpose of a bill of costs is to place upon the record only such costs as are not reflected in the record, and ...


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