Ralph A. Davies, Linton L. Moyer, Pittsburgh, for appellant at No. 81.
John C. Carlin, Jr., Pittsburgh, for appellant at No. 84.
James M. Keller, Ellwood City, for appellees.
Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix, and Manderino, JJ. Roberts and Manderino, JJ., join in this opinion, and Roberts, J., filed a concurring opinion in which Manderino, J., joins.
In these appeals we are asked to determine the validity and enforceability of Rule 303 J of the Court of Common Pleas of Allegheny County, which, in de novo appeals from compulsory arbitration, generally restricts a party from calling witnesses not called at the arbitration hearing. The rule provides:
"Except by allowance of the Court for good cause shown, no witness, other than an after-discovered witness, may be called by a party at any subsequent trial who was not called as a witness by that party at the arbitration hearing."
The instant action was commenced in the court of common pleas on June 18, 1972, when the Webers, plaintiff-appellees, filed a complaint in trespass against defendant-appellant Mary Katherine Lynch alleging negligence and seeking damages arising out of an incident on July 5, 1970, in which an automobile operated by Lynch allegedly collided with the rear end of a stopped automobile in which the Webers were passengers. Subsequently, Lynch denied negligence and filed a complaint naming appellant Newton M. Weir as an additional defendant. Pursuant to the Arbitration Act of 1836, as amended,*fn1 and its local rules the court referred the matter to an arbitration board consisting of three members of the county bar. At the arbitration hearing the plaintiffs
presented eleven witnesses, including two doctors who had examined and treated Mrs. Weber subsequent to the collision, but a Dr. Mallory, who had been the first to treat her subsequently, did not testify. After the hearing, the arbitrators awarded Mrs. Weber $3,000.00 and Mr. Weber $1,000.00 and found both defendant and additional defendant equally liable. The Webers perfected a timely appeal from the award of the arbitrators and requested and received a jury trial in the court of common pleas.*fn2
At the trial both defendants admitted their liability to the Webers, and so the only issue before the jury was the amount of damages due. The Webers proposed to call Dr. Mallory, who would have testified that he had examined Mrs. Weber less than two weeks after the collision, at which time he diagnosed "traumatic bursitis due to injury in auto accident," and that in connection with this condition he ...