John J. Robinson, Upper Darby, for appellant.
George J. Giunta, Jr., Media, for appellee, Werner.
William V. Coleman, Philadelphia, for appellee, Chrysler Corp.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Price, J., files a dissenting opinion. Watkins, former President Judge, did not participate in the consideration or decision of this case.
[ 253 Pa. Super. Page 15]
This is an appeal from the order of the lower court refusing to open the judgment entered against appellant Springfield Dodge, Inc., pursuant to an award of arbitrators. We affirm.
Appellee Margaret M. Brown Werner, plaintiff below, filed a complaint in assumpsit against Springfield Dodge, Inc., and Chrysler Corporation on February 21, 1974. The case was referred to arbitration,*fn1 and on June 1, 1976, an award was entered for appellee in the amount of $3,460.70 against both defendants. On June 20, 1976, Chrysler filed a timely appeal from the arbitrators' award and paid the costs
[ 253 Pa. Super. Page 16]
in connection therewith. No appeal, however, was taken by Springfield Dodge.
Subsequently, on August 26, 1976, appellee notified appellant of her intention to institute execution proceedings. Appellee filed a praecipe for a writ of execution, and the writ was issued on September 20, 1976. Accordingly, the Sheriff of Delaware County levied against appellant's property.
Appellant filed its petition to open judgment on November 3, 1976, alleging, inter alia, that it had relied upon Chrysler's appeal as being an appeal of the entire action. This appeal followed Judge Labrum's order of February 10, 1977, denying that petition.
"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. Super. 418, 420, 243 A.2d 146, 147 (1968) (Emphasis supplied.) See also Mitchell v. Pittsburgh, 233 Pa. Super. 119, 335 A.2d 403 (1975); Hammerman v. Lee, 207 Pa. Super. 370, 217 A.2d 853 (1966). Here, the arbitrators made only one award against both defendants, and Chrysler took its appeal from "the award of the arbitrators." However, counsel for Chrysler filed an affidavit,*fn2 dated August 24, 1976, in which the following language appears:
"4. that upon instructions from my client I filed an appeal from the award of arbitrators on behalf of ...