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OTTAVIANO v. SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY ET AL. (03/29/76)

decided: March 29, 1976.

OTTAVIANO, APPELLANT, ET AL.
v.
SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY ET AL.



Appeal from order of Court of Common Pleas, Trial Division, of Philadelphia, March T., 1970, No. 1775, in case of Joseph Ottaviano and Joseph Zangari v. Southeastern Pennsylvania Transportation Authority and Joseph Ottaviano, additional defendant.

COUNSEL

Sidney E. Herold, with him Paul N. Sandler and Thomas J. Ingersoll, for appellant.

James Ciamaichelo, with him Joseph F. Keener, Jr., and Norman Hegge, Jr., for appellee.

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

Author: Jacobs

[ 239 Pa. Super. Page 365]

We are here concerned with an award of arbitration in favor of Joseph Zangari, one of two joint plaintiffs, and against Southeastern Pennsylvania Transportation Authority (SEPTA) and appellant, both as joint plaintiff and additional defendant. On appellant's appeal from arbitration, the court below granted summary judgment in favor of SEPTA. We find this ruling proper and affirm.

On December 23, 1968, an accident occurred in the City of Philadelphia involving a car driven by appellant, Joseph Ottaviano, in which Joseph Zangari was a passenger, and a SEPTA bus. Both Ottaviano and Zangari, represented by the same attorney, brought suit against SEPTA, which joined Ottaviano as additional defendant.*fn1 In his two capacities, as co-plaintiff and defendant, Ottaviano was represented by separate counsel.*fn2 The case was assigned to arbitration*fn3 and on November 28, 1973, the arbitrators filed their report and award in favor of plaintiff Zangari in the amount of $900.00 against both defendant SEPTA and additional defendant Ottaviano, and in favor of SEPTA in the claim of Ottaviano as plaintiff. On December 19, 1973, the attorney who represented Ottaviano as plaintiff filed an appeal in which the following language appeared:

[ 239 Pa. Super. Page 366]

"Kindly enter appeal on behalf of plaintiff, Joseph Ottaviano only, from the Award of Arbitrators filed November 28, 1973 . . . ." No other appeals were filed. On February 27, 1974, an order was filed of record, again by plaintiffs' attorney, marking the award of arbitrators satisfied as to Joseph Zangari only.

Ottaviano's appeal was listed for a trial de novo before the Philadelphia Court of Common Pleas. Defendant SEPTA moved for summary judgment asserting that Ottaviano was appealing in his capacity as plaintiff only and consequently the judgment against him as additional defendant was final. This final judgment, defendant contends, determined the issue of appellant Ottaviano's negligence and he is therefore estopped from proceeding with any further action for damages based on the same cause of action. The court below agreed with this position and entered an order granting the motion for summary judgment based on the principles of collateral estoppel and the finality of unappealed arbitration awards. Appeal to this Court was taken from the lower court's order.

Appellant, as a party to the arbitration, has a statutory right to appeal from the award of arbitrators and is entitled to a trial de novo. Act of June 16, 1836, P.L. 715, § 27, as amended, 5 P.S. § 71.*fn4 It is appellant's view that the failure of the counsel representing appellant as defendant to bring an appeal should not operate to deprive him of his right. Since the identity of appellant as both co-plaintiff and additional defendant is apparent, appellant contends that his appeal in one capacity would necessarily involve an appeal in the other. As authority for this argument, reliance is placed on Washik v. Chase, 231 Pa. Superior Ct. 378, 332 A.2d 481 (1974). Washik is actually one of the more recent

[ 239 Pa. Super. Page 367]

    statements of this Court in a long line of opinions concerning appeals from arbitration awards.*fn5 All these decisions reflect different aspects of the same issue: When only one of multiple parties to an arbitration appeals, which of the unappealing parties are also carried up for review? From a review of the cases it appears that such an appeal includes those who the appellant intends to include or whose participation is ...


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