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THOMAS J. RILEY v. HERBERT M. COBE (05/25/79)

decided: May 25, 1979.

THOMAS J. RILEY, APPELLANT,
v.
HERBERT M. COBE



No. 973 October Term, 1978, On appeal from the Order of Judge Frederick B. Smillie, dated January 26, 1978, Court of Common Pleas of Montgomery County, No. 75-03278, Civil Action-Law.

COUNSEL

Allen L. Feingold, Philadelphia, for appellant.

James S. Kilpatrick, Jr., Ardmore, for appellee.

Van der Voort, Wieand and Lipez, JJ.

Author: Wieand

[ 266 Pa. Super. Page 439]

Appellant contends that the trial court improperly attempted to alter the amount of a judgment which had been entered upon a compulsory arbitration award after the period for appeal therefrom had expired. We agree and reverse.

Appellant, Thomas J. Riley, commenced an action against Herbert M. Cobe, appellee, to recover damages to property and for personal injuries arising from an automobile accident on December 25, 1973 in Lower Merion Township, Montgomery County. In due course, the action was submitted to compulsory arbitration and resulted in an award of $3,039.30 in favor of appellant. By virtue of a prior request made by both counsel, the arbitration board itemized the award, specifying that $1,935 was for personal injuries and $1,104.30 for property damage. No appeal was filed from this award. After the time therefor had expired, appellant caused judgment to be entered on the award. Still later, appellee filed a petition to "correct, amend or open" the judgment by excluding therefrom the $1,104.30 awarded as property damages. In support of his petition, appellee produced a cancelled check which had been issued by his liability insurance company and delivered to appellant's collision carrier in the amount of $789.83. Appellant filed an answer in which he denied knowledge of such a check. He also denied that he had agreed to accept any amount less than the total loss which he had sustained. The actual amount of his property damage, he now argues, was determined by the arbitration board to be $1,104.30. He contends that even if appellee is entitled to a credit for the sum of $789.83 previously paid, he cannot be deprived of the unpaid balance of the award.

At the time of the arbitration hearing, counsel for the parties were uncertain whether the property damage claim

[ 266 Pa. Super. Page 440]

    had been adjusted by the respective insurance carriers. In order to permit further investigation, therefore, it was agreed to ask the arbitrators to itemize any award in favor of appellant to reflect separately the award for property damage and that for personal injuries. Appellee's contention, as pleaded in his petition to amend the judgment, is that appellant agreed that if the collision loss had been adjusted by the insurance companies, appellant would accept an additional $100, representing the deductible feature of the policy, in full satisfaction of his claim for property damage.

Appellee's motion to amend the judgment was listed for argument and was argued before the learned trial judge on appellee's petition and appellant's answer denying the averments of the petition. Depositions had not been taken, and no evidence was submitted to assist the court in deciding the factual dispute concerning the terms of the parties' agreement. Following argument, the court entered an order directing the Prothonotary to amend the amount of the judgment to $2,035.*fn1

Section 24 of the Act of June 16, 1836, P.L. 715, § 24, 5 P.S. § 54, provides: "Every [arbitration] award . . . shall have the effect of a judgment . . . until reversed upon appeal, or satisfied according to law." (Emphasis added.) However, Section 26 of the same Act, as amended, 5 P.S. § 57, permits the several courts of common pleas to set aside awards of arbitrators, on due proof that the arbitrators have misbehaved themselves or that the award was "procured by corruption, or other undue means." In the absence of misconduct on the part of the arbitrators, it has been held, the only remedy for a mistake in fact or of law, is by appeal. ...


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