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LEINWAND v. JOHN WANAMAKER PHILA. (11/16/73)

decided: November 16, 1973.

LEINWAND, APPELLANT,
v.
JOHN WANAMAKER OF PHILA., INC. ET AL.



Appeal from order of Court of Common Pleas, Trial Division, of Philadelphia, Dec. T., 1967, No. 1312, in case of Isidore Leinwand, Assignee of John Godfrey Associates, Inc. v. John Wanamaker of Phila., Inc. and Moore Trucking Company, Inc.

COUNSEL

Henry N. Fineman, with him A. Samuel Buchman, for appellant.

Guy T. Moore, with him Joseph Neff Ewing, Jr., and Saul Ewing, Remick & Saul, for defendant, appellee.

Joel Paul Fishbein, with him Bennett, Bricklin & Saltzburg, for additional defendant, appellee.

Wright, P. J., Watkins, Jacobs, Hoffman, Cercone, and Spaeth, JJ. (Spaulding, J., absent.) Opinion by Hoffman, J.

Author: Hoffman

[ 226 Pa. Super. Page 252]

This is an appeal from the order of the court below quashing appellant's appeal from a compulsory arbitration award.

[ 226 Pa. Super. Page 253]

Appellant (hereinafter, "plaintiff") commenced an assumpsit action in the Court of Common Pleas of Philadelphia against the appellee, John Wanamaker, Inc. (hereinafter, "original defendant") for goods consigned to original defendant and never returned. Original defendant filed an Answer and New Matter, asserting several defenses including the return of the goods to the plaintiff. Original defendant also filed a Complaint to join as an additional defendant the appellee, Moore Trucking Co. (hereinafter, "additional defendant"). Original defendant alleged alternatively that additional defendant was solely liable to the plaintiff, was jointly and severally liable, or liable over to the defendant.

On March 16, 1972, an arbitration panel returned an award in favor of both defendants. On March 23, plaintiff filed an appeal from the award of the arbitrator " in favor of the defendant ". The caption of the entrance of appeal listed the original defendant only, and not the additional defendant. In order to perfect the appeal, plaintiff paid the record costs with respect to original defendant only, and gave notice of the appeal to original defendant only.

Additional defendant and original defendant both filed motions to quash the appeal. The court below ordered the appeal quashed in its entirety. With respect to additional defendant, the court quashed the appeal because of plaintiff's failure to pay costs and give notice of the appeal. With respect to original defendant the court held that because the appeal of the additional defendant had to be quashed, the appeal as to the original defendant must also be quashed because without the additional defendant, it would be impossible to conduct a de novo trial. The issue thus presented is whether it is proper to quash a plaintiff's appeal from an adverse arbitration award in favor of an original defendant which has been perfected because the plaintiff fails to perfect an appeal as to an additional defendant.

[ 226 Pa. Super. Page 254]

Our research indicates that neither statute, procedural rule, nor judicial precedent has spoken to this issue. We are not aided by decisions of this court concerning the effect of an appeal by one of two joint defendants from an adverse award against that defendant. Compare Hammerman v. Lee, 207 Pa. Superior Ct. 370, 217 A.2d 853 (1966); and Bortock v. Philadelphia Transport Co., 203 Pa. Superior Ct. 385, 198 A.2d 617 (1964); with Flounders v. Foster, 212 Pa. Superior Ct. 418, 243 A.2d 146 (1968); and Klugman v. Gimbel Brothers, Inc., 198 Pa. Superior Ct. 268, 182 A.2d 223 (1962). These cases hold that an appeal by one of two original defendants does not include an appeal ...


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