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MITCHELL v. PITTSBURGH ET AL. (03/31/75)

decided: March 31, 1975.

MITCHELL
v.
PITTSBURGH ET AL., APPELLANTS



Appeal from order of Court of Common Pleas, Civil Division, of Allegheny County, Jan. T., 1973, No. 1566, in case of Anna M. Mitchell v. City of Pittsburgh and Harry E. Stockline.

COUNSEL

Joseph A. Fricker, Jr., Assistant City Solicitor, with him Mead J. Mulvihill, Jr., City Solicitor, for appellants.

Francis V. Sabino, for appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Hoffman, J. Watkins, P.j., and Jacobs, J., dissent. Concurring Opinion by Price, J.

Author: Hoffman

[ 233 Pa. Super. Page 120]

Appellants contend that the lower court erred in refusing to vacate the judgment entered against appellant Harry E. Stockline pursuant to an award of arbitrators, where it appeared that appellant City of Pittsburgh had taken a timely appeal from the award of arbitrators with the intent that it be effective for both parties.

Appellee, plaintiff below, was allegedly injured in a collision with a truck driven by appellant Stockline, an employee of the City of Pittsburgh who was driving a truck owned by the City of Pittsburgh, on the night of January 21, 1971. Appellee alleges that appellant Stockline operated the truck in a negligent manner; appellant City of Pittsburgh can only be liable vicariously under the theory of respondeat superior. In November, 1972, appellee brought an action in trespass in the Court of Common Pleas of Allegheny County. At a pretrial conference, the parties agreed to submit the case to arbitration,

[ 233 Pa. Super. Page 121]

    and on January 4, 1974, the case was ordered to arbitration pursuant to the Act of June 16, 1836, P.L. 715, § 8.1, added January 14, 1952, P.L. (1951) 2087, § 1, as amended, 5 P.S. § 30. On April 22, 1974, a panel of three arbitrators entered an "award for plaintiff in the amount of $6,000 against both defendants." On May 13, 1974, appellant City of Pittsburgh took an appeal "from the award of the Arbitrators." On May 17, 1974, appellee entered a judgment of $6,000 against appellant Stockline on the award of the arbitrators. A notice of judgment was mailed the same day. On May 22, 1974, appellants prepared a petition to vacate the judgment and allow an appeal nunc pro tunc. This petition and appellee's answer were presented to the lower court, which denied the motion on June 10, 1974.*fn1 This appeal followed.

When an appeal is taken from an arbitration conducted pursuant to the Act of June 16, 1836, supra, § 8.1, the party appealing is entitled to a jury trial de novo. Act of June 16, 1836, supra, as amended, § 27(V), 5 P.S. § 71(V). This right to a jury trial de novo is mandated by the Pennsylvania Constitution, Art. I, sec. 6. Smith Case, 381 Pa. 223, 112 A.2d 625 (1955), appeal dismissed, 350 U.S. 858. In order to maintain the appealing party's right to a jury trial on all issues involved in the case, his appeal may in certain cases carry with it

[ 233 Pa. Super. Page 122]

    other parties to the arbitration who have not technically filed appeals. See, e.g., Washik v. Chase, 231 Pa. Superior Ct. 378, 332 A.2d 481 (1974); Portock v. Philadelphia Transportation Co., 203 Pa. Superior Ct. 385, 198 A.2d 617 (1964).

"It has long been the law in this Commonwealth that where a board of arbitrators finds two or more defendants jointly liable, an appeal from the arbitrators' award taken by only one defendant will not be considered an appeal by all defendants unless it appears that this was the intention of the appealing party." Flouders v. Foster, 212 Pa. Superior Ct. 418, 420, 243 A.2d 146, 147 (1968) (emphasis supplied).*fn2 See also Washik v. Chase, supra, 231 Pa. Superior Ct. at 382, n. 2, 332 A.2d at 483, n. 2. When a timely appeal has been filed by one of the joint defendants, and it appears that it was his intention that the appeal carry with it another defendant who had not filed a timely appeal, the lower court, on motion, should strike a judgment entered on the arbitration award against the non-appealing defendant and allow that defendant to participate in the trial de novo. Hammerman v. Lee, 207 Pa. Superior Ct. 370, 217 A.2d 853 (1966). The record below indicates that appellant City of Pittsburgh intended its appeal to include the appeal of appellant Stockline and that the principle of Hammerman v. Lee, supra, should apply. Here, as in Hammerman, the party appealing from the arbitration filed an affidavit stating that it intended its appeal to be effective for both parties. The arbitrators made ...


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