Appeal from order of Court of Common Pleas of Lehigh County, Sept. T., 1967, No. 106, in case of Beth-Allen Sales Company v. Hartford Insurance Group et al.
J. Jackson Eaton, with him Theodore J. Zeller, Jr., and Butz, Hudders & Tallman, for appellant.
Robertson B. Taylor, with him Kolb, Holland, Antonelli & Heffner, for appellee.
Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. Opinion by Hoffman, J.
[ 217 Pa. Super. Page 43]
This case, which involved a claim of less than $2,000.00, was submitted to a Board of Arbitrators in
[ 217 Pa. Super. Page 44]
Lehigh County. The arbitrators filed an award in favor of the defendant and additional defendant. Within the statutory period, plaintiff filed an appeal from the award. In an attempt to perfect the appeal, plaintiff filed an appeal affidavit affirming that the appeal was not taken for purposes of delay, paid all costs that had accrued in the action, and deposited an additional sum of $50.00 with the prothonotary. The prothonotary noted on the docket with regard to this $50.00: "Cash bond in the sum of $50.00 deposited with the Prothonotary."
Defendant moved to quash the appeal on the ground that plaintiff had failed to file a recognizance with sufficient surety, within the 20 day period as required by the Act of June 16, 1836, P. L. 715, § 27, 5 P.S. § 71. The lower court, after argument, quashed the appeal. That decision is now the subject of the appeal before us.
Most recently, in Gable v. Chintala, 212 Pa. Superior Ct. 471, 243 A.2d 487 (1968), our Court held that the deposit of cash does not meet the statutory requirement that a recognizance be filed on appeal. There, the prothonotary noted on the docket that money was "deposited in the escrow account." We noted in dictum, however, that where a defective recognizance is filed, the same may be perfected after the appeal time has expired and the appeal will not be dismissed. New Castle Metal Products Company v. Campbell, 131 Pa. Superior Ct. 367, 200 A. 118 (1938); Ostot v. Shoff, 22 Pa. D. & C. 2d 488 (1960) (Jacobs, J.).
The issue in this case is whether plaintiff satisfied the statutory requirements for filing a recognizance. More specifically, the issue is whether the reference to a cash bond, together with the deposit of $50.00, constituted the filing of a recognizance with one or more sureties, as is required by the Act.
[ 217 Pa. Super. Page 45]
The meaning of the word "recognizance" was considered in Commonwealth v. Emery, 2 Binney 431 (1810). In Emery, the memorandum on the docket stated the caption of the case, a name, an amount, that it was conditioned on the appearance of a person at a term of court, and two signatures. It did not mention the word "recognizance," "debt," "obligation," "bond," or similar words. Yet, the Supreme Court found from the above, a sufficient "recognizance". In so holding, the Court stated: "A recognizance is a debt of record, entered into before some court, judge or magistrate, having authority to take the same. . . . The manner of taking a recognizance is, that the magistrate repeats to the recognizors the obligation into which they are to enter, and the condition of it, at large, and asks them if they are content. He makes a short memorandum, which it is not necessary that they should sign, although a custom has lately taken place in this city, for the recognizors to sign their names. . . . In all countries there are particular modes of doing business, which are known and regarded by their courts. Our courts and justices transact their business with much less form than in England. By this we save much expense, although we are sometimes subject to ill consequences arising from uncertainty. In this Commonwealth, the records of the courts of justice, consist principally of short entries, not reduced to form. It is ...