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FLOUDERS v. FOSTER ET AL. (06/13/68)

decided: June 13, 1968.

FLOUDERS
v.
FOSTER ET AL., APPELLANTS



Appeal from order of County Court of Philadelphia, Sept. T., 1964, No. 3707 B, in case of Mary E. Flouders v. Vera Foster et al.

COUNSEL

Paul J. Senesky, with him Gerber, Galfand & Berger, for appellants.

Edwin S. Heins, Jr., with him Raspin, Espenshade, Heins, Erskine & Stewart, for appellee.

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

Author: Jacobs

[ 212 Pa. Super. Page 419]

Defendant Vera Foster and Garnishee United National Insurance Co. appeal from the order of the lower court refusing to strike and/or open a judgment entered against defendant Foster. The judgment was entered on an arbitrators' award after the statutory appeal period had expired and only the other defendant, James Abrams, had filed a timely appeal.*fn1 We affirm.

Mary E. Flouders filed a complaint in trespass against the defendants, Vera Foster and James Abrams, on October 8, 1964. The case was tried before a panel of arbitrators and an award was entered on September 28, 1965 in favor of the plaintiff in the amount of $1,407.36 against both defendants.

[ 212 Pa. Super. Page 420]

On October 18, 1965, the defendant, James Abrams, filed a timely appeal. No appeal was taken by the defendant, Vera Foster. On November 9, 1967 plaintiff caused judgment to be entered on the award against the defendant Vera Foster only in the amount of $1,407.36. A writ of attachment execution was issued on November 10, 1967 and was served on United National Insurance Co. as garnishee. On December 13, 1967 the insurance company-garnishee filed a petition and rule to show cause why the judgment should not be stricken and/or opened. The only theory advanced was that Abrams' appeal from the award carried with it an appeal on behalf of Foster and prevented entry of judgment. The lower court refused to strike off or open the judgment. This appeal followed.

It has long been the law in this Commonwealth that where a board of arbitrators finds two or more defendants jointly liable, an appeal from the arbitrators' award taken by only one defendant will not be considered an appeal by all defendants unless it appears that this was the intention of the appealing party. Rice v. Foster, 2 W. & S. 58 (1841); Anderson v. Levan, 1 W. & S. 334 (1841); Hartman v. Stahl, 2 P. & W. 223 (1830). Appellants argue that recent decisions of this court govern the instant situation and compel a contrary result. We cannot agree.

Our most recent consideration of the effect of one party's appeal from an arbitrators' award is Hammerman v. Lee, 207 Pa. Superior Ct. 370, 217 A.2d 853 (1966). In that case we affirmed the decision of the lower court in striking off a judgment entered against an additional defendant after only the original defendant took a timely appeal from the arbitrators' report and award. It was apparent that it was the intention of the appealing party that the appeal was to be effective as to both the defendant and the additional defendant

[ 212 Pa. Super. Page 421]

    and an affidavit to that effect was filed. Furthermore the additional defendant had reimbursed the defendant for ...


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