No. 327 October Term 1979, Appeal from the Order of the Court of Common Pleas of Philadelphia County, Pa., Civil Div., at No. 5690 June 1967.
Steven R. Waxman, Philadelphia, for appellant.
Carl M. Mazzocone, Philadelphia, for appellee.
Spaeth, Hester and Cavanaugh, JJ.
[ 277 Pa. Super. Page 56]
This is an appeal from an order denying appellant's motion to quash appellee's appeal nunc pro tunc from an arbitration panel's award.
On December 15, 1977, a panel of arbitrators filed a report and award in favor of appellant and against appellee. On December 29, appellee's counsel filed an appeal from the award to the Court of Common Pleas. Sometime between December 29 and January 9, 1978, the prothonotary returned the appeal to appellee's counsel because it was missing an affidavit stating that it had not been taken for the purpose
[ 277 Pa. Super. Page 57]
of delay. Record at 21. On January 4, the statutory period for appeal from an arbitration award expired. On January 9, appellee made out the affidavit of non-delay and apparently tried to file the appeal again with the prothonotary. On January 18 the prothonotary again returned the appeal because it had an incorrect docket number marked on it. Appellee then petitioned the lower court for leave to file the appeal nunc pro tunc. The petition alleged that the failure to file a timely appeal was due to inadvertent secretarial error. The lower court denied the petition. Appellee filed a petition for reconsideration, explaining that the secretarial error had been to type on the appeal an incorrect docket number, and that this had occurred because the arbitrators had put the incorrect number on their report and the secretary had copied it. The petition for reconsideration did not refer to the fact that no affidavit of non-delay had been filed before January 4. In response to the petition for reconsideration the lower court granted the petition for leave to file the appeal from the arbitrators' award nunc pro tunc. When the appeal was filed, appellant filed a motion to quash it. The motion was denied. This appeal followed.*fn1
The Act of June 16, 1836, P.L. 715, § 27, as amended, 5 P.S. § 71 (Purdon's 1963), provides in pertinent part:
Either party may appeal from an award of arbitrators, to the court in which the cause was pending at the time the rule or agreement of reference was entered, under the following rules, regulations and restrictions, viz.:
I. The party appellant, his agent, or attorney, shall make oath or affirmation, that ...