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JAMES B. GALLARDY v. LLOYD CLAIR ASHCRAFT AND NANCY ANN ASHCRAFT (06/12/81)

filed: June 12, 1981.

JAMES B. GALLARDY
v.
LLOYD CLAIR ASHCRAFT AND NANCY ANN ASHCRAFT, HIS WIFE, APPELLANTS



No. 570 April Term, 1979, Appeal from the Order of the Court of Common Pleas of Cambria County, No. 1973-303, Civil Action - Law.

COUNSEL

Robert B. Mitinger, Jr., Bellefonte, submitted a brief on behalf of appellants.

Francis J. Leahey, Jr., Ebensburg, for appellee.

Spaeth, Wickersham and Lipez, JJ. Wickersham, J., files a dissenting statement.

Author: Lipez

[ 288 Pa. Super. Page 38]

On October 2, 1973, plaintiff filed this assumpsit action, which went to compulsory arbitration. The board of arbitration filed an award in favor of defendants. The award was entered on the lower court's docket on December 9, 1975. On January 12, 1976, the time limit for filing an appeal from the award having expired,*fn1 plaintiff filed in the

[ 288 Pa. Super. Page 39]

    common pleas court below a petition for allowance of appeal nunc pro tunc. On February 5, 1976 the court below held an evidentiary hearing on the petition. In an order dated October 11, 1978 and filed May 21, 1979,*fn2 the court granted the petition. Defendants took this appeal*fn3 from that order on June 18, 1979.*fn4

[ 288 Pa. Super. Page 40]

In its opinion filed on November 14, 1979, the court below discussed the evidence as follows:

The docket entries in this case and the testimony introduced at the hearing on the Petition reveals the following: Plaintiff was represented at the hearing before the Arbitration Board by Attorney Patrick Washington. The Prothonotary of Cambria County, instead of mailing the Notice of the Award of the Board to Mr. Washington, mailed it to Plaintiff's son, who in turn gave the Notice to Plaintiff on December 14, 1975 (the Award was entered December 9, 1975). The Plaintiff, who was 84 years old and ill at the time the Notice of the Award reached him, attempted, through his daughter, Cleo Shope, to contact Mr. Washington for the purpose of filing an Appeal from the Award. Mrs. Shope spoke with Mr. Washington's father (who resides in Cambria County) and was provided with an address in Harrisburg, Pennsylvania, for Mr. Washington. Mrs. Shope then wrote a letter to Mr. Washington and mailed it to the Harrisburg address on approximately December 16, 1975. The letter was returned to Mrs. Shope by the postal service. A second

[ 288 Pa. Super. Page 41]

    letter was sent by registered mail by the Plaintiff or the Plaintiff's son to Mr. Washington's office address in Harrisburg. That letter was not returned by the postal service. Mr. Washington did not contact Mrs. Shope until January 16, 1976, when he telephoned her. In the meantime, Plaintiff, having recovered from his illness, contacted his present counsel on January 5, 1976 (five days after the ...


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