Appeal from judgment of County Court of Philadelphia, Sept. T., 1962, No. 7964D, in case of Sharon Ann Elliott, a minor, by her parent and natural guardian Margaret M. Elliott et al. v. Rito C. Lenzi et ux.
Edward W. Silver, with him Lawrence Solomon, for appellants.
Elias Magil, with him Martin P. Mullen, for appellees.
Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Hannum, JJ. Opinion by Watkins, J. Jacobs, J., concurs in the result.
[ 213 Pa. Super. Page 511]
This is an appeal from an order of the County Court of Philadelphia refusing a motion to remove a non-suit; and from the dismissal of a motion to quash the appeal from the award of arbitrators because of the nonpayment of record costs.
On November 1, 1962 the minor and her mother, the appellants, instituted a trespass action against the appellees to recover damages for dog bites inflicted on the minor's legs on November 4, 1960. Awards were entered by the arbitrators on October 15, 1963 in favor
[ 213 Pa. Super. Page 512]
of the minor in the amount of $2000 and in favor of the mother in the amount of $693.75. The appellees filed a timely appeal on November 1, 1963 and ordered the case on the non-jury list. The appeal papers certified by the prothonotary are endorsed "all record costs paid to date". On November 12, 1963 the appellants, by praecipe, demanded a jury trial, paid the jury fee and transferred the action from the non-jury list to the jury trial list. It was fixed for trial on April 23, 1964 when all parties appeared. It was continued several times pending possible settlement. No further action was taken until November 5, 1965 when the appellants for the first time presented a petition to show cause why the appeal from the arbitrators' award should not be quashed for failure to pay the record costs. This was more than two years from the date of the filing of the appeal. The petition was discharged on October 9, 1967 and the case ordered to trial.
On November 13, 1967 the case was called to trial and the appellants again moved the court to quash for the same reasons and again the motion was discharged. The trial was rescheduled for January 15, 1968 at which time the appellants indicated that they would not proceed and the court below granted the motion for a non-suit.
The passage of time is responsible for a lot of the confusion in this case. The appellee's original counsel Lucian F. Pazulski is deceased and neither his partner or present counsel, who had the matter referred to him in 1967, are able to state whether the appellees' costs were in fact paid. The court below determined that the costs were paid, holding:
"Plaintiffs' Petition to Quash the Appeal from the Arbitrators' Award averred that defendant failed to pay the plaintiffs' ...