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MERLE E. GOMMER v. MICHAEL J. KOTCH (07/12/78)

SUPERIOR COURT OF PENNSYLVANIA


decided: July 12, 1978.

MERLE E. GOMMER, APPELLANT,
v.
MICHAEL J. KOTCH

No. 337 October Term, 1977, Appeal from Order of the Court of Common Pleas, Civil Division, of Luzerne County, at No. 4007 of 1976.

COUNSEL

Peter B. Broida, Wilkes-Barre, for appellant.

Joseph J. Musto, Wilkes-Barre, for appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Watkins, former President Judge, did not participate in the consideration or decision of this case.

Author: Van Der Voort

[ 256 Pa. Super. Page 21]

Appeal is taken from an Order of the court below denying plaintiff's (appellant herein) petition seeking allowance to appeal from an adverse award of arbitrators without payment of costs and posting of bond. Further procedural facts are that plaintiff had filed a complaint in trespass which, due to the amount of the recovery sought, was first to be heard in compulsory arbitration.*fn1 After hearing, the arbitrators found for defendant. Plaintiff thereupon caused to be filed a petition wherein he averred that he was not impoverished, but alleged that payment of costs and surety as a precondition to appealing from the arbitrators' award was an unconstitutional infringement upon his right to jury trial. The defendant filed an answer, and the matter proceeded as a rule to show cause. On October 18, 1976, plaintiff's petition was denied; it is this Order from which plaintiff appeals.

[ 256 Pa. Super. Page 22]

The compulsory submission of civil causes of action in the courts of common pleas is based upon the Act of 1836, June 16, P.L. 715, as amended, 5 P.S. § 21 et seq. The procedures of appeal from the arbitrators' award are set out at 5 P.S. §§ 71-81. Inter alia these sections mandate that costs shall be paid and a recognizance filed as a precondition to the appeal. A party against whom an award has been entered and who may choose to appeal, but who is prevented from doing so because he cannot pay the costs required, may petition to proceed with relief from these costs. 5 P.S. § 72.

Appellant herein again raises the argument that, particularly in cases wherein the amount of the award is very small, it is an infringement upon an appealing litigant's right to trial to be required to pay costs and protect an award which may be overturned by the court when heard de novo. Our Supreme Court answered this very challenge in Smith Case, 381 Pa. 223, 112 A.2d 625 (1955), and held that the procedures of appealing are not a forbidden restriction upon the constitutional right. Later in reliance thereon, our court found no constitutionally-prohibited requirement in regard to appealing under the Act, supra. Fleisher v. Kaufman, 206 Pa. Super. 378, 212 A.2d 846 (1965). This case presents no factual nuance upon which we would be inclined to reassess the positions formerly stated by this Court and the Supreme Court. Appellant's constitutional rights are intact. See the latest discussion of Compulsory Arbitration Act procedures in Weber v. Lynch, 473 Pa. 599, 375 A.2d 1278 (1977).

Finding no infirmity of constitutional dimensions in this case, we reach the conclusion that the order appealed from did not foreclose plaintiff from further proceeding in the Court of Common Pleas, assuming that he proceed in accordance with the Act, supra. By his own statement, plaintiff was not impoverished and therefore did not pursue the allowances of 5 P.S. § 71, supra. Consequently, the order upon which this appeal is founded is not finally dispositive of the case below. Because it is not a final order, we will quash the appeal.

[ 256 Pa. Super. Page 23]

Appeal quashed and case remanded for further proceedings in the lower court.


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