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GABLE v. CHINTALA (ET AL. (06/13/68)

decided: June 13, 1968.

GABLE
v.
CHINTALA (ET AL., APPELLANT)



Appeal from order of Court of Common Pleas of York County, Aug. T., 1965, No. 265, in case of Gladys R. Gable et al. v. George M. Chintala et al.

COUNSEL

J. Edward Pawlick, for appellant.

Michael P. Loucks, with him Liverant, Senft & Cohen, for appellee.

Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Hannum, JJ. Opinion by Hannum, J. Watkins, J., dissents.

Author: Hannum

[ 212 Pa. Super. Page 472]

On July 21, 1965, plaintiffs brought a trespass action against defendant Chintala for damages to their automobile. Defendant joined Kuhns, appellant here, as additional defendant and asserted affirmative claim against Kuhns for damages to defendant's automobile. The amounts of damage being within statutory limits of arbitration, this case was heard by arbitrators who filed an award on July 11, 1966 in favor of plaintiffs against additional defendant and in favor of defendant against additional defendant.

On August 1, 1966, additional defendant appealed from the award (both awards), paying the prothonotary the amount of the arbitrators' fees, and the additional sum of $142.40. The prothonotary noted on the docket that this latter sum was "deposited in the escrow account". No recognizance of any sort was filed within the statutory 20 day period as required by the Act of June 16, 1836, P. L. 715, § 27, 5 PS § 71, and no recognizance has been filed to the present time.

[ 212 Pa. Super. Page 473]

On October 6, 1966, defendant Chintala, appellee here, moved to quash the appeal of additional defendant on the grounds that the additional defendant had failed to pay the accrued costs, or to file a recognizance.

Following argument, the court (Shadle, J.) by order, directed the prothonotary to refund to additional defendant all amounts deposited by him except the accrued docket cost, failed to perceive how the appellant had not paid the accrued costs, granted the motion to quash the appeal in that the additional defendant did not, in fact, file a recognizance as required by statute. The additional defendant appealed. The order will be affirmed.

In the case of appeals from awards of arbitrators, the prerequisites to such appeals are laid down by statute.

In Fleisher v. Kaufman, 206 Pa. Superior Ct. 378, 382, 212 A.2d 846 (1965), this Court said: "As was said by Stern, C. J., in the Smith case, 381 Pa. 223, at 231, 112 A.2d 625, at 630 (1955): 'There can be no valid objection, therefore, to the provisions of the Act of 1836, unchanged by the Act of 1952, regarding the payment of the accrued costs and the giving of a recognizance for the payment of the costs to accrue in the appellate proceedings as the condition for the allowance of an appeal from the award of the arbitrators.'"

In Ostot v. Shoff, 22 Pa. D. & C. 2d 488 (1960), Jacobs, J. (now Judge Jacobs of this Court), said: ". . . in the case of appeals from justices of the peace the prerequisites to such appeals are laid down by statute just as ...


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