Appeal from judgment of Court of Common Pleas of Montgomery County, No. 65-10732, in case of Catherine Lanigan v. Theodore D. Lewis et al.
E. William Heuser, with him Torak & Deyoung, for appellants.
Harry N. Moran, Jr., with him James N. Peck, for appellee.
John C. Bonner, with him McTighe, Koch, Brown & Weiss, for appellee.
Ervin, P. J., Wright, Watkins, Montgomery, Jacobs, Hoffman, and Spaulding, JJ. Opinion by Montgomery, J.
[ 210 Pa. Super. Page 275]
Plaintiff, Catherine Lanigan, in an action of trespass for damages arising from an accident between a taxicab in which she was riding as a passenger and another automobile, received an arbitrators' award of $6,594.92 against defendant Robert P. Alderfer, Jr., the driver-owner of the other automobile, the arbitrators finding in favor of defendants Theodore D. Lewis and William P. Hansley, the owner and driver of the taxicab. The award was filed on February 23, 1966. On March 4, 1966, Alderfer appealed from the award and in doing so paid all costs which had accrued to the plaintiff, including a statutory attorney fee of three ($3.00) dollars due plaintiff's attorney.
Thereafter, on April 6, 1966, defendants Lewis and Hansley filed a motion to quash the appeal because the defendant Alderfer had failed to pay the statutory attorney's fee*fn1 allegedly due their attorney, which they claimed was also part of the record costs. A rule to show cause why the appeal should not be quashed was entered by the Common Pleas Court returnable April 26, 1966. However, before the return day of the rule the case was brought to trial on the merits and all parties participated in it. The trial resulted in a verdict for plaintiff Lanigan against all the defendants, Alderfer, Lewis, and Hansley.
Subsequently the court discharged the rule on the motion to quash, refused defendants' motions for a new trial and judgment n.o.v., and ordered judgment entered on the verdict. This appeal by Lewis and Hansley followed the entry of the judgment.
[ 210 Pa. Super. Page 276]
By participating in the trial Lewis and Hansley would, as a general rule, be held to have waived any defects or omissions in the manner the appeal from the arbitrators was taken. Wetter v. Kiley, 95 Pa. 461 (1880); Wilson v. Kelly, 81 Pa. 411 (1876); Mayes v. Jacoby, 8 Serg. & Rawle 526 (1822). However, since they filed a motion to quash prior thereto which was acted on subsequently, we cannot hold that they waived such alleged omissions and we must consider the merits of their motion. To make proof of a waiver of a legal right there must be clear, unequivocal and decisive action of the party with knowledge of such right showing a purpose to surrender it. Neely v. J. A. Young & Co., Inc., 198 Pa. Superior Ct. 196, 181 A.2d 915 (1962).
The question before us is: Is an attorney's fee of three dollars properly taxable as part of the costs when an award of arbitrators has been appealed?
The Act of February 22, 1821, P. L. 50, 7 Sm. L. 367, § 2, 17 P.S. § 1635, and the Act of April 2, 1868, P. L. 3, § 9, 17 P.S. § 1636, are the same in meaning although the words are slightly different. In the earlier act attorneys were allowed three dollars if judgment is rendered, non-suit or discontinuance obtained. In the latter act the same fee of three ...