Appeal from order of Court of Common Pleas, Trial Division, of Philadelphia, Sept. T., 1971, No. 507, in case of Black and Brown, Inc. v. Home For The Accepted, Inc.
Otis R. Johnson, and Braxton, Johnson & Kopanski, for appellant.
George Ashe and Rubin Mogul, for appellee.
Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Van der Voort, J. Hoffman and Cercone, JJ., concur in the result.
[ 233 Pa. Super. Page 519]
This appeal again raises the issue of whether the non-payment of costs, in an appeal from an award of arbitration, should support a dismissal of the appeal. Our review requires a re-examination of the holding in Meta v. Yellow Cab Company of Philadelphia, 222 Pa. Superior Ct. 469, 294 A.2d 898 (1972).
[ 233 Pa. Super. Page 520]
The record in the instant case shows that on September 9, 1971, a Complaint in Assumpsit was filed by appellee against appellant in the Court of Common Pleas. Appellee had previously filed a mechanic's lien for alleged non-payment on cabinets and appliances furnished to appellant. The assumpsit action was heard by a Board of Arbitrators and on December 3, 1973 an award was filed in favor of appellee for two thousand, four hundred, seventy-five ($2,475.00) dollars plus interest. The award was docketed on December 28, 1973.
The docket entries show a sum of twenty-eight ($28.00) dollars in the upper left hand corner. The parties agreed that on December 30, 1973, appellant's trial counsel inquired of, and was informed by, counsel for appellee, that accrued costs amounted to one hundred, two ($102.00) dollars.*fn1 Appellant's trial counsel notified his client of the costs and the necessity for payment of costs if an appeal was taken. Appellant disregarded this notice and dismissed its trial counsel without notice to appellee. Appellant did not inform new counsel of its prior notice as to costs. An appeal from the Arbitrators award was made on January 10, 1974. Despite compliance with other requirements, appellant made no effort to pay accrued costs to appellee prior to the expiration of the appeal period.
On February 15, 1974, appellee filed a Motion to Quash the appeal based on the failure of appellant to tender costs. On March 14, 1974, appellant's counsel offered appellee's counsel a check for one hundred, two ($102.00) dollars, but such tender was refused. On March 22, 1974, the lower court granted appellee's Motion and ordered the appeal quashed. The instant appeal followed.
[ 233 Pa. Super. Page 521]
The appellant maintains that the action of the lower court was erroneous in light of the holding of Meta v. Page 521} Yellow Cab Company of Philadelphia, Id. In that case, the defendant's attorney paid to the plaintiff's attorney only ten ($10.00) dollars for record costs of the arbitration proceedings, rather than the actual amount due, seventeen dollars and seventy-five cents ($17.75).*fn2 Judge Packel, in a Majority Opinion, joined by then President Judge Wright, and Judges Spaulding and Cercone, held essentially that the ". . . 20 day time limit and the furnishing of security are properly jurisdictional requirements but the requirement for the payment of costs is directory rather than mandatory [emphasis supplied]." Meta, supra, 222 Pa. Superior Ct. at 476, 294 A.2d at 902. In a Dissenting Opinion, Judge Hoffman, joined by present President Judge Watkins and Judge Jacobs, argued essentially that the requirement was mandatory that costs be timely paid to perfect the appeal, and that the Court should not disregard the clear legislative command by holding otherwise.*fn3
The lower court in the instant case distinguished Meta from the facts of this case since there was no attempt by appellant in this case to pay any costs during the appeal period. In our review of the instant appeal we find ...