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PETER MIKITA AND SANTA R. MIKITA v. BAILEY HOMES (04/19/79)

decided: April 19, 1979.

PETER MIKITA AND SANTA R. MIKITA, APPELLANTS,
v.
BAILEY HOMES, INC. V. BUILDERS SUPPLY COMPANY, INC. BAILEY HOMES, INC. V. PETER MIKITA, SANTA R. MIKITA, APPELLANTS, GREAT AMERICAN FEDERAL SAVINGS & LOAN ASSOCIATION, SUCCESSOR IN INTEREST OF FIRST FEDERAL SAVINGS & LOAN ASSOCIATION OF HOMESTEAD. PETER MIKITA AND SANTA R. MIKITA V. BAILEY HOMES, INC. V. BUILDERS SUPPLY COMPANY, INC., APPELLANT



Nos. 557 and 558 April Term, 1978, No. 662 April Term, 1978, Appeals from the Orders entered January 4, 1978, and January 27, 1978, by the Court of Common Pleas of Allegheny County, Civil Division at Nos. 5469 of 1976 and GD 76-23644.

COUNSEL

Howard F. Messer, Pittsburgh, and with him Ronald G. Backer of Messer & Shilobod, Pittsburgh, for Peter and Santa R. Mikita, appellants at 557 and 558; appellees at 662.

Lewis J. Nescott, McKeesport, for Builders Supply Co., Inc., appellant at 662 and appellee at 557.

Harvey E. Schauffler, Jr., Pittsburgh, for Bailey Homes, appellee at 662.

John M. Kish, Pittsburgh, did not file a brief for appellee Great American Federal Sav. & Loan Assn.

Price, Hester and Watkins, JJ. Price, J., files a dissenting opinion.

Author: Hester

[ 265 Pa. Super. Page 402]

There is no division in this court as to the appeal of Peter Mikita, et ux. filed at numbers 557 and 558 April Term, 1978. After taking an appeal from the Arbitrators' Award, Mikitas took no further action. Notice of said appeal was not served upon the opposing party. This was in complete disregard of the requirements of Rule No. 306(a)(1) of the Allegheny County Rules of Civil Procedure. Our reasoning is completely set forth in the dissenting opinion of Price, J. We will affirm the orders of the court below which quashed this appeal.

As to the appeal of Builders Supply Company, Inc. at No. 662 April Term, 1978, the appeal from the Arbitrators' Award was filed October 6, 1977. On October 7, 1977, counsel for Builders notified opposing counsel of said appeal by mail. Said notice stated:

"This is to advise you that I filed an appeal on October 6, 1977, from the award of the Board of Arbitrators in the above case.

"I have requested a non-jury trial and we will be notified as soon as the case is placed on the next non-jury trial list."

Rule No. 306(a)(1) of the Allegheny County Rules of Civil Procedure requires that a copy of the Notice of Appeal be served upon the adverse party or his counsel. The court

[ 265 Pa. Super. Page 403]

    below quashed the appeal alleging non-compliance with said rule. We are of the opinion there has been substantial compliance with the provisions of said rule and that the matter should be tried on the merits.

This court as well as our Supreme Court has always followed the precept that substantial compliance with the statutory requirements of the act of 1836 relating to the taking of appeals would be sufficient.

In Black and Brown, Inc. v. Home for Accepted, Inc., 233 Pa. Super. 518, 335 A.2d 722 (1975), the appellant caused an appeal to be taken from an Arbitrators' Award but neglected to pay accrued costs to appellee prior to the expiration of the appeal period. The lower court quashed the appeal and this court sustained, holding (page 724):

"The lower court in the instant case distinguished Meta from the facts of this case since there was no attempt by appellant in this case to pay any costs during the appeal period. In our review of the instant appeal we find significant the fact that no timely attempt to tender costs was made by appellant, despite express notice of the requirement that this be done.

Our recognition in this regard leads us to conclude that the holding in Meta must be overruled insofar as it declares that the statutory requirement of the payment of costs in this type of appeal is directory rather than mandatory. We simply cannot condone a complete refusal and failure to pay the record costs in an appeal from arbitration.

Both the majority and minority views in Meta, supra,*fn1 recognized the harshness of denying a party a right of appeal when he mistakenly paid ten ($10.00) dollars in record costs, rather than the actual record costs of seventeen dollars and seventy-five cents ($17.75). The majority pointed out that in other cases, our Court has followed a principle of the sufficiency of substantial compliance. We now adopt that rationale and hold that the requirement

[ 265 Pa. Super. Page 404]

    that record costs be paid during the appeal period is mandatory -- but with the caveat that a valid attempt to make such timely and full payment, coupled with substantial though incomplete compliance with the requirement should not result in the harsh finality of an order quashing an appeal from arbitration. Rather, our courts should examine the appellant's attempts at compliance in order to determine whether an honest effort has been made to meet the requirements of the statute. Our overruling of the holding of Meta applies also to its progeny. (See e. g.: Holmes v. Broodno, 222 Pa. Super. 478, 294 A.2d 903 (1972)).

Lastly, returning to the facts of the instant appeal, we find no attempt at substantial compliance by appellant, but rather a situation where no semblance of compliance exists."

In Beth-Allen Sales Co. v. Hartford Insurance Group, 217 Pa. Super. 42, 268 A.2d 203 (1970), the appellant filed an appeal from the Award of the Arbitrators. Said appeal was perfected in all respects with the exception that appellant posted the sum of $50 with the Prothonotary, who noted on the docket: "Cash bond in the sum of $50.00 deposited with the Prothonotary". The lower court quashed said appeal on the ground that the appellant had failed to file a recognizance with sufficient surety within the 20-day period as required by the Act of 1836. In reversing, this court held (page 206 of 268 A.2d 203):

[ 265 Pa. Super. Page 405]

"We conclude, that the 'bond' or 'recognizance' noted on the docket was defective in that it did not set forth all of the conditions of a proper recognizance. As we noted in Gable v. Chintala,*fn2 however, the established practice is to permit the filing of an amended recognizance non pro tunc and not to dismiss the appeal in such circumstances. This decision is based on the belief that where a party has made an honest effort to file his appeal in accordance with the statute, and has substantially complied with the requirements, justice will not permit his appeal to be dismissed Page 405} with prejudice. See Cochran v. Parker, [6 S & R 549 (1821)]. (Emphasis supplied)

And further, on page 206:

". . . Here, plaintiff in good faith took his appeal and filed a 'bond' which, in his opinion, complied with the requirements for perfecting the appeal. Although the recognizance, was defective in various respects, its purpose, in light of the statutory framework was obvious and its obligation understood. To quash the appeal in these circumstances would result in a return to the supremacy of form over substance and the exaltation of technical detail over justice, an approach which courts in all areas have been opposing for many years. " (Emphasis supplied)

Justice therefore requires a procedure which ensures that an appellee will receive adequate notice of the filing of an appeal. In Meade v. Equitable Credit & Discount Co., 190 Pa. Super. 561, 155 A.2d 386 (1959), and Morrison v. Union National Bank, 244 Pa. Super. 634, 371 A.2d 1310 (1977), appellants did not serve either appellees or their counsel with a copy of the notice of appeal. Those opinions have no application to the within fact situation. Here, the attorney for Builders notified the counsel for the adverse party that:

"This is to advise you that I filed an appeal on October 6, 1977, from the award of the Board of ...


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