Kenneth M. Cushman, Howard D. Venzie, Jr., Pepper, Hamilton & Scheetz, Philadelphia, for appellant.
Joseph T. LaBrum, Jr., Leo A. Hackett, Fronefield, deFuria & Petrikin, Clement J. McGovern, Jr., Media, for plaintiff-appellee.
Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ.
The Chester City School Authority commenced a civil action in assumpsit, in January 1972 alleging breach of a construction contract against Aberthaw Construction Company, American Sanitary Sales and Service Co., Inc., Hobbs & Company, Inc. and their insurance carriers. Almost concurrent with the filing of the complaint in assumpsit the contractors filed a Demand for Arbitration with the American Arbitration Association pursuant to the provisions of their contracts. The School Authority responded by commencement of an equity action, against Aberthaw, American Sanitary Sales and Service Co., Inc., and their insurance carriers.*fn1 The Equity Court, by stipulation of counsel, consolidated the actions for argument and disposition. The Court issued a Decree dismissing the defendants' preliminary objections to the complaint in equity and preliminarily restrained and enjoined any and all arbitration proceedings pertaining to all disputes which formed the subject of the assumpsit action. The Court also issued an Order in the assumpsit action dismissing defendant's Petition for Stay of Proceedings Pending Arbitration. Aberthaw has instituted these appeals.*fn2,*fn3
v. Kuhn, 428 Pa. 179, 236 A.2d 758 (1968); Hagy v. Premier Manufacturing Corp., 404 Pa. 330, 172 A.2d 238 (1961); Dozor Agency v. Rosenburg, 403 Pa. 237, 109 A.2d 771 (1961). The Act of 1866, insofar as it permits the right of appeal from the grant or denial of a preliminary injunction, was not repealed by the Appellate Court Jurisdiction Act of 1970 since it did not vest jurisdiction and power in courts in any manner inconsistent therewith. See, Appellate Court Jurisdiction Act of 1970, 17 P.S. § 211.509(g). Thus, the appeal at No. 70 falls within the purview of § 211.501(a),*fn5 which allows, under § 211.502(a),*fn6 a period of 30 days to perfect an appeal. The appeal having been perfected within the 30-day period is therefore timely and the objection is without merit.
As to the Motion to Quash at No. 92 (Assumpsit), appellee contends that appellant, by filing a Petition to Stay Proceedings Pending Arbitration, is in effect raising a question of jurisdiction and therefore that appeal is controlled by 17 P.S. § 211.502(d) which limits the filing period to 20 days from the entry of an order. As pointed out by this Court in Teodori v. Penn Hills School District Authority, 413 Pa. 127, 134, 196 A.2d 306, 310 (1964), the defense of arbitration does not go to the court's jurisdiction over the subject matter. In Borough of Ambridge Water Authority v. J. Z. Columbia, Pa. , 328 A.2d 498 (1974), we noted that an agreement to arbitrate is an election by the parties to select another forum to resolve disputes. While it is binding on the signators to that agreement, this private agreement
by the parties does not have the power to divest the court of jurisdiction.
This appeal was in fact brought under the Act of April 25, 1927, P.L. 381, No. 248, § 15; as amended, Act of 1971, June 3, P.L. 118, No. 6, § 1 (§ 509(a)(84)), 5 P.S. § 175(b) (Supp.1974-75), and Appellate Court Jurisdiction Act of 1970, 17 P.S. § 211.509(g)(31). This section provides:
(b) An appeal may be taken to the Supreme or Superior Court, as in cases of final judgments, from an order either staying or refusing to stay the trial of a suit or proceeding pending arbitration, or from an order either directing or refusing to direct the parties to proceed to arbitration."
Here again, the Appellate Court Jurisdiction Act of 1970 did not repeal the right to appeal this type of order since the Act of 1927 is not inconsistent with the Appellate Court Jurisdiction Act. This appeal, being authorized by law, was properly appealed under 17 P.S. § ...