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ARTHUR R. STOUT CAROLE STOUT ARTHUR R. STOUT v. UNIVERSAL UNDERWRITERS INSURANCE COMPANY (10/31/80)

SUPREME COURT OF PENNSYLVANIA


decided: October 31, 1980.

ARTHUR R. STOUT; CAROLE STOUT; ARTHUR R. STOUT, HUSBAND OF CAROLE STOUT; GAIL STOUT, A MINOR, BY ARTHUR R. STOUT, HER GUARDIAN; ROBERT STOUT, A MINOR, BY ARTHUR R. STOUT, HIS GUARDIAN; AND ARTHUR R. STOUT AND CAROLE STOUT, HIS WIFE, PARENTS OF GAIL STOUT AND ROBERT STOUT, APPELLANTS,
v.
UNIVERSAL UNDERWRITERS INSURANCE COMPANY, A STOCK INSURANCE COMPANY, APPELLEE

No. 55 March Term, 1979, Appeal from Order of the Superior Court of Pennsylvania at No. 1088 April Term, 1978.

COUNSEL

George A. Conti, Jr., Greensburg, for appellants.

Donald W. Bebenek, Arthur J. Murphy, Jr., Meyer, Darragh, Buckler, Bebenek & Eck, Pittsburgh, for appellee.

Eagen, C. J., and O'Brien, Roberts, Nix, Larsen, Flaherty and Kauffman, JJ. Eagen, former C. J., did not participate in the decision of this case.

Author: Kauffman

[ 491 Pa. Page 602]

OPINION

This appeal is from an order of the Superior Court quashing an appeal from a judgment of the Westmoreland County Court of Common Pleas.*fn1

Appellants, Arthur R. Stout and his wife and two children, were severely injured when an automobile owned by Hamilton Buick and Pontiac, Inc. ("Hamilton") and driven by one of its repair customers collided with their automobile. At issue below was whether Hamilton's motor vehicle liability insurance policy written by appellee, Universal Underwriters

[ 491 Pa. Page 603]

Insurance Company ("Universal"), extended coverage to the customer-driver who had borrowed the car while his mother's vehicle was in Hamilton's shop for repairs.*fn2 The Court of Common Pleas found in favor of Universal, holding that the customer-driver was not an insured under Hamilton's policy.

On February 15, 1978, timely notice of appeal was filed with the prothonotary of the Court of Common Pleas pursuant to Pa.R.A.P. 902, 903(a), and 905.*fn3 On the same day, a copy of said notice was served by mail upon the trial judge and counsel for Universal. Appellants failed, however, to docket their appeal with the Superior Court pursuant to Pa.R.A.P. 907 as it then existed.*fn4 On July 6, 1978, without prior notice to appellants, Universal filed a motion to quash

[ 491 Pa. Page 604]

    the appeal pursuant to Pa.R.A.P. 1971 for failure to comply with Rule 907.*fn5 On the next day, July 7, 1978, appellants cured their oversight by filing a copy of the notice of appeal and proof of service with the prothonotary of the Superior Court. Despite appellants' prompt action, Universal's motion to quash was granted on August 1, 1978 for failure to comply with Pa.R.A.P. 907. This appeal followed.

Appellants contend that the Superior Court abused its discretion in quashing their appeal, which, with the exception of a minor oversight by their attorney, was timely perfected in all respects, including service of notice upon opposing counsel. We agree. Pa.R.A.P. 902 expressly provides that failure to take any step other than the timely filing of a notice of appeal does not affect the validity of an appeal. The extreme action of dismissal should be imposed by an appellate court sparingly, and clearly would be inappropriate when there has been substantial compliance with the rules and when the moving party has suffered no prejudice.

Universal neither has alleged nor proved any prejudice, whereas appellants, who promptly cured their oversight just one day after they learned of it, will lose all hope of recovery for their injuries if deprived of their constitutionally granted right of appeal.*fn6 The harshness of the penalty in

[ 491 Pa. Page 605]

    view of the substantive rights involved and the minor inadvertence of counsel is unjust in the extreme.

The Rules of Appellate Procedure were adopted to insure the orderly and efficient administration of justice at the appellate level. They were not intended, however, to be so rigidly applied as to result in manifest injustice, particularly when there has been substantial compliance and no prejudice. See Pomerantz v. Goldstein, 479 Pa. 175, 387 A.2d 1280 (1978).

Accordingly, we reverse and remand for consideration of the merits.


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