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DR. NORMAN KURTZMAN v. JULIA B. PASSYN (08/28/81)

SUPERIOR COURT OF PENNSYLVANIA


filed: August 28, 1981.

DR. NORMAN KURTZMAN,
v.
JULIA B. PASSYN, ESQUIRE, THEODORE PASSYN, AND MAR-FAX, INC., A PENNSYLVANIA CORPORATION, APPELLANTS

No. 1076 Philadelphia, 1980, Appeal from the Order of the Court of Common Pleas of Philadelphia County, Civil Division, No. 1110 March Term, 1977.

COUNSEL

Robert G. Bernberg, Philadelphia, for appellants.

Fred Lowenschuss, Philadelphia, for appellee.

Spaeth, Brosky and Hoffman, JJ.

Author: Hoffman

[ 290 Pa. Super. Page 198]

Appellants contend that the lower court erred in quashing their appeal from an arbitration award. We agree and, accordingly, reverse the order of the lower court and remand for reinstatement of the appeal.

Appellee commenced this action in assumpsit against appellants in early 1977. The matter was submitted to compulsory arbitration, and on June 20, 1979, after hearing testimony, the arbitrators found for appellee in the amount of $7,500. The award of the arbitrators was docketed on June 27, 1979. Nineteen days later, on July 16, 1979, appellants filed an appeal from the arbitration award in the Court of Common Pleas of Philadelphia County. On that same day appellants purchased a money order for $241.18, the exact amount specified in a bill of costs which they had received from appellee, and their counsel sent it by certified mail to appellee's counsel at the office address listed on papers which the latter had filed earlier in the litigation. Appellee's counsel had, however, moved his office sometime during the pendency of the litigation, and consequently the envelope containing the money order for appellee's accrued costs was returned unopened to appellants' counsel on July 26, 1979, twenty-nine days after the docketing of the arbitration award. Realizing his mailing error, appellants' counsel had the money order hand-delivered that same day to appellee's counsel at his new address. Appellee has apparently retained the payment of costs to date.

On August 21, 1979, appellee filed a motion to quash appellant's appeal from the arbitration award. The basis of the motion was appellants' failure to pay appellee's accrued costs within twenty days, pursuant to 5 P.S. § 71 (repealed).*fn1

[ 290 Pa. Super. Page 199]

Appellee noted in his motion that appellants had tendered the costs on July 26, but contended that such tender was untimely. The lower court agreed and granted appellee's motion to quash. This appeal followed.

Appellants contend that they made an honest effort to pay all appellee's accrued costs within twenty days after the docketing of the arbitration award, and that the mere fact that they inadvertently mailed their payment to the wrong address does not warrant the quashing of their appeal.*fn2 We

[ 290 Pa. Super. Page 200]

    agree. The payment of costs requirement of 5 P.S. § 71 has been held to be mandatory and jurisdictional. James F. Oakley, Inc. v. School District of Philadelphia, 464 Pa. 330, 334-35, 346 A.2d 765, 767 (1975). Nonetheless, our Court has held 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.

Black and Brown, Inc. v. Home for the Accepted, Inc., 233 Pa. Super. 518, 522, 335 A.2d 722, 724 (1975) (footnote omitted). See also Sager & Sager Associates v. Bock, 280 Pa. Super. 459, 421 A.2d 812 (1980); Mikita v. Bailey Homes, Inc., 265 Pa. Super. 399, 401 A.2d 1367 (1979); Lehman v. Moody, 260 Pa. Super. 428, 394 A.2d 1002 (1978); Friedgen v. Evangelical Manor, 253 Pa. Super. 216, 384 A.2d 1309 (1978). In Sager & Sager Associates v. Bock, supra, we applied this principle and reversed an order quashing an appeal from compulsory arbitration under the following circumstances. After filing an appeal from an adverse arbitration award, the defendants inquired at the prothonotary's office to ascertain the plaintiff's accrued costs. Upon being informed that the docket reflected costs of $200, they paid that amount to the prothonotary. Subsequently, the plaintiff successfully moved to quash the appeal on the ground that the defendants had failed to pay certain filing and sheriff's fees totaling $40.65, of which the prothonotary had failed to inform them. We reversed, holding that "[t]he fact that the prothonotary erroneously did not include plaintiff's filing

[ 290 Pa. Super. Page 201]

    fee and sheriff's fee in the total does not change the fact that defendant[s] made a timely attempt to pay all the costs, though this later proved to be incomplete compliance." 280 Pa. Super. at 461, 421 A.2d at 813. Cf. Black and Brown, Inc. v. Home for the Accepted, Inc., supra (trial court properly quashed appeal from compulsory arbitration where appellant made no attempt whatsoever to pay any costs during appeal period).

We believe that the facts of the present case warrant the same result as that reached in Sager & Sager Associates v. Bock, supra. Appellants made an honest attempt to pay all appellee's accrued costs within twenty days after the docketing of the arbitration award. Had they mailed their payment to the proper address they would have been in full compliance with the payment of costs requirement of 5 P.S. § 71. As soon as appellants discovered their mailing error, they attempted to rectify it by promptly hand-delivering payment to appellee's attorney at his new office. We are unpersuaded by appellee's efforts to characterize what appears to be an honest mistake as a calculated effort to delay the proceedings.*fn3 Accordingly, we reverse the order of the lower court and remand for reinstatement of the appeal.

So ordered.


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