No. 412 Pittsburgh, 1980, Appeal from the Order of the Court of Common Pleas, Civil Division of Allegheny County at No. 7356 of 1976.
John M. Silvestri, Pittsburgh, for appellant.
Allen N. Brunwasser, Pittsburgh, for appellees.
Spaeth, Shertz and Montgomery, JJ. Montgomery, J., files a dissenting opinion.
[ 291 Pa. Super. Page 477]
This is an appeal from an order denying a motion to quash an appeal from compulsory arbitration. We affirm.
This case has an extensive and unusual procedural history, which we must review in order to define the issue now before us.
On June 25, 1976, an automobile owned by appellee Barbara Pugar and driven by appellee Ina Brunwasser was involved in an accident with an automobile driven by appellant Dominic Greco. Pugar filed suit against Greco, claiming damages to her automobile of $127.40. Greco joined Brunwasser as an additional defendant. The case was referred
[ 291 Pa. Super. Page 478]
to compulsory arbitration, and on both claims -- Pugar's against Greco, and Greco's against Brunwasser -- the arbitrators found in favor of Greco. The arbitrators' award was docketed on January 11, 1977.
Pugar and Brunwasser did not perfect an appeal from the arbitrators' award. Instead, within the 20 day period then allowed for perfecting an appeal, they filed a motion with the lower court for permission to appeal without payment of additional costs. They claimed that in a case involving only $127.40, the requirement that in order to perfect their appeal they had to pay a $60 non-returnable arbitration fee chilled their constitutional right to a jury trial. The lower court denied this motion by an order dated January 28, 1977, but not docketed until February 1st. Pugar and Brunwasser appealed that order to this court. We granted Greco's motion to quash the appeal as interlocutory. On allocatur, the Supreme Court affirmed our order. Pugar v. Greco, 483 Pa. 68, 394 A.2d 542 (1978).
Within 20 days of the Supreme Court's decision, Pugar and Brunwasser paid the $60 arbitration fee and perfected their appeal from the arbitrators' award. Greco moved to quash the appeal as untimely. He argued to the lower court, as he does to us, that Pugar's and Brunwasser's original motion to the lower court -- their motion for permission to appeal from the arbitrators' award without payment of the additional costs -- did not operate to toll or extend the period for perfecting an appeal from an arbitration award, and that therefore the award had become final and unappealable. The lower court denied the motion to quash, and Greco filed this appeal.*fn1
[ 291 Pa. Super. Page 479]
The lower court said that it denied Greco's motion to quash because it understood the Supreme Court's opinion in Pugar v. Greco, supra, to say that if Pugar and Brunwasser paid the disputed fee, they could file an appeal from the arbitrators' award and have a jury trial. We agree with the lower court's understanding of the Supreme Court's opinion. The critical part of that opinion said:
Appellants [Pugar and Brunwasser] are not "out of court," either on the merits of the automobile accident claim or on the right to the jury trial question. Upon payment of the fee and costs appellants' appeal from the adverse arbitrators' award will proceed in the customary manner. If they or either of them should not succeed in that de novo trial, the alleged error in requiring the payment of the $60 fee as a condition of the ...