November 6, 1981
PROVIDENT CONSUMER DISCOUNT COMPANY
ROBBIE MARTIN APPELLANT V. LILLIAN M. ROBINSON, INDIVIDUALLY AND AS EXECUTRIX FOR WILLIAM R. ROBINSON AND DAVID L. STINSON AND SAMUEL ROGEN ADDITIONAL DEFENDANTS
No. 2301 October Term, 1979, Appeal from the Order of the Court of Common Pleas of Philadelphia County, Pennsylvania, Civil Division, at No. 4921 May Term, 1971.
Before Brosky, Johnson and Popovich, JJ.
On May 28, 1977, Provident Consumer Discount Company ("Provident") brought an action in assumpsit against appellant-Robbie Martin for defaulting on a note. Appellant, in turn, filed a responsive pleading and a complaint against additional defendants, William Robinson, his wife Lillian Robinson, David L. Stinson and Samuel Rogen. The matter went to arbitration, and the panel ruled in favor of Provident as to its cause of action involving appellant, and against the appellant in her cause of action involving the additional defendants.
Appellant filed a timely appeal from the Board's award, to which Provident filed a Motion to Quash on the basis of nonpayment of costs. The appeal was quashed by the Hon. Judge Greenberg on August 30, 1979. Prior to the entry of the court Order appellant, on August 15, 1979, filed a separate and distinct Petition to Set Aside Award of Arbitrators ("Petition"). This Petition was denied by Order of Court on October 3, 1979; the instant appeal is from said Order.
Appellant contends on appeal that the lower court improperly denied her Petition. We affirm on the Opinion of the Court below, which is to be used for allocatur purposes.
IN THE COURT OF COMMON PLEAS OF PHILADELPHIA
TRIAL DIVISION - CIVIL SECTION
PROVIDENT CONSUMER DISCOUNT COMPANY vs. ROBBIE MARTIN ET AL.
MAY TERM 1971
JUNE 10, 1980.
On October 3, 1979, the undersigned denied defendant, Robbie Martin's Petition to Set Aside Award of Arbitrators.
The defendant has filed an appeal with Superior Court.
1. On May 28, 1971, the plaintiff, Provident Consumer Discount Company filed a complaint in assumpsit against the defendant, Mrs. Robbie Martin, alleging that the defendant had defaulted on a note and owed plaintiff $2,183.64 plus collection charges of $436.60.
2. On July 12, 1971, the defendant, by her attorney, David A. Scholl, Esq., of Community Legal Services, Inc., filed an answer, containing new matter and a counterclaim. She asserted that the loans involved the purchase of two properties and that Samuel Rogen, an employee of the plaintiff, and William Robinson and David Stinson had fraudulently induced her to sign a loan agreement for money that had already been repaid.
3. On March 21, 1972, with leave of court, the defendant filed a complaint against additional defendants William Robinson, Lillian M. Robinson, his wife, David L. Stinson and Samuel Rogen.
4. On April 10, 1972, the defendant filed an affidavit of service signed by Albert C. Twyman of Community Legal Services, Inc.It set forth that a copy of the complaint had personally been delivered to Lillian M. Robinson on April 4, 1972, and that she accepted service on behalf of her deceased husband William or his estate; that a copy had been personally delivered to David L. Stinson in Chester County, Pennsylvania, on April 6, 1972; and that a copy had been personally delivered to Samuel Rogen on March 24, 1972.
5. Additional defendant, Samuel Rogen, filed an answer to defendant's complaint.Mrs. Robinson filed preliminary objections which were sustained.
6. On July 31, 1972, the defendant filed an Amended Complaint against the additional defendants.
7. Additional defendants, Samuel Rogen and Lillian M. Robinson, individually and as executrix of the Estate of William R. Robinson, filed answers to the Amended Complaint. David L. Stinson filed neither an answer nor preliminary objections nor was an entry of appearance filed on his behalf.
8. The case was assigned to an Arbitration Panel. On March 12, 1979, notices of a hearing to be held on April 19, 1979 were sent to all counsel, including Julius E. Fioravanti, Esq., new attorney for Robbie Martin. Notices were also sent to Mr. Stinson and Mr. Rogen.
A hearing was held on April 19, 1979, and the arbitration panel made the following award:
"For plaintiff Provident Consumer Discount Co. against Robbie Martin in the amount of $2,151.91 with interest from 2/20/74 plus collection costs of $436.60. In Defendant Martin's Complaint against Lillian M. Robinson, Indiv and as Executrix of the Estate of William R. Robinson, and David L. Stinson, and Samuel Rogen, Judgment in favor of all defendants and against Plaintiff."
The award was filed on April 23, 1979 and copies mailed to the parties or counsel.
9. On May 14, 1979, Mr. Fioravanti filed an appeal from the arbitrator's award, along with a $100 bond covering the arbitration fee.
10. On June 29, 1979, as per local court rules, plaintiff's counsel notified Mr. Fioravanti of his intention to file a Motion to Quash the appeal and served the latter with a copy of the Motion. The plaintiff's petition alleged that defendant had not paid costs, citing the Act of June 16, 1936, P.L. 715, § 27, 5 P.S. § 71, as amended.*fn*
11. On July 16, 1979, plaintiff filed his Motion to Quash with Motion Court.
12. On July 10, 1979, Mr. Fioravanti filed an answer to the motion. In "argument" in support of the answer, Mr. Fioravanti stated:
"Technically, the accrued costs were not paid at time of filing the appeal because defendant Martin's attorney was out of the office from April 19, 1979 to April 30, 1979. Tender of costs are at this time submitted.
"Furthermore, plaintiff never filed a bill of costs or submitted a statement of same."
13. On August 30, 1979, Judge Greenberg granted the Motion to Quash the appeal, citing the fact that defendant made no tender of costs prior to the filing of her answer to the Motion to Quash.
14. On August 15, 1979, while disposition of the Motion to Quash was pending, Mr. Fioravanti filed with Motion Court a Petition to Set Aside Award of Arbitrators. Plaintiff filed an answer. The Petition was received by the undersigned for disposition on September 21, 1979.
15. In that petition, the defendant alleged, inter alia,
"4... [On] January 28, 1979... defendant Robbie Martin filed a Certificate of Readiness in the above captioned matter."
"6. That all parties and their counsel were present [at the arbitration hearing], with the exception of additional defendant, David Stinson, who was an indispensable additional defendant in this matter."
"7. That counsel for additional defendant, Stinson, who was present, represented to the panel that additional defendant Stinson had never, in fact, been served with the Complaint and therefore (sic) not a party to the action. See docket entries attached hereto.
"8. That counsel for additional defendant Stinson had in his possession preliminary objections averring the said fact of no service made upon Stinson and represented to the panel that he attempted to file these objections on April 19, 1979 and was unable to do so because the panel had been appointed to hear this matter.
"9. Defendant, Robbie Martin, by her attorney, requested the Chairman to examine the original court file to determine whether or not additional defendant Stinson had been served as aforesaid.
"10. The Chairman of the panel determined that no service had been made on additional defendant Stinson.
"11. Defendant, Robbie Martin requested a continuance for the reason that additional defendant Stinson, who was an indispensable defendant, be served with the complaint and/or be present at a further hearing, since counsel was available; said request was denied by the panel.
"16. That on July 16, 1979, defendant Martin by her attorney, in preparing said Answer to Motion to Quash the Appeal, examined the original court file and located therein an Affidavit of Service by Albert C. Twyman, Community Legal Services, Inc., 3135 Juniper Street, Philadelphia, Pa., wherein he stated that he personally served David L. Stinson, additional defendant on April 6, 1972. See Exhibit "C" attached hereto and made part hereof."
16. Mr. Fioravanti argued as grounds for the setting aside of the award of the arbitrators that the defendant was not afforded a fair hearing because of the failure of the additional defendant Stinson to appear even though he had been personally served.
17. In its answer to the Petition the plaintiff alleged, inter alia :
"9-10 Denied. On the contrary it is averred that the record indicated that all the additional defendants had been served improperly and not in accordance with the Rules of Civil Procedure. The chairman then consulted with a Common Pleas Court Judge believed to be the Honorable Stanley Greenberg, as to whether any of the additional defendants should remain in the case. It is also counsel's recollection that since two of the defendants had filed a responsive pleading, their motion to be discharged in the case was denied. However, Stinson did not file a Responsive Pleading, the Court directed that the additional defendant, Stinson, be removed from the case."
18. On October 3, 1979, the undersigned denied defendant's Petition to Set Aside Award of Arbitrators.
The compulsory arbitration hearing held in the instant case was pursuant to Section 7361 of the Judicial Code*fn** and Philadelphia Civil Rule 180.
In response to the Report and Award of Arbitrators filed after the hearing, the defendant filed a Petition to Set Aside Award of Arbitrators. The defendant, however, cited no authority in support of the procedure and remedy requested and we have found none.
There are three methods by which the award of a board of arbitrators can be changed: (1) by filing exceptions pursuant to Rule 180 (VI)(D) within 30 days from the filing of the report and award for the following reasons only: because the arbitrators misbehaved themselves in the conduct of the case, and/or because the action of the board was procured by corruption or other undue means;
(2) by petitioning the Court of Common Pleas to correct an award that was improperly recorded [ see Riley v. Cobe, Pa. Super. , 405 A.2d 514, 515 (1979)];
(3) by filing an appeal within 30 days after the entry of the award as set forth in Section 7361(d) of the Judicial Code and Philadelphia Civil Rule 180 (VI)(A-C).
In the instant case no exceptions to the report and award had been filed and there had been no allegations that the arbitrators misbehaved or that the award was improperly procured. There was no contention that the award was improperly recorded.
In the absence of misconduct on the part of the arbitrators or a mistake in the recording of the award, the only remedy for a mistake in fact or of law, was by appeal. Riley v. Cobe, 405 A.2d at 515.
In the instant matter, the defendant filed an appeal but failed to tender costs. Her appeal was properly quashed by Judge Greenberg. Madrid Motor Corp. v. Cashan, 206 Pa. Super. 383; 213 A.2d 284 (1965).
Thereafter, this Court had no authority to alter the decision of the arbitrators by setting aside their award. Riley v. Cobe, 405 A.2d at 515.
We also note that the reasons set forth by defendant in support of her petition to set aside the award are entirely lacking in merit.
The defendant argued that the arbitrators incorrectly concluded that additional defendant Stinson had not been served. That conclusion is correct. The complaint was not served by the sheriff in accordance with Pa.R.C.P. 1009 or Pa.R.C.P. 2254. Instead, an attempt to serve was made pursuant to Rule 1011: "In lieu of service by the sheriff, the defendant may accept service of the writ or complaint."
The affidavit of service prepared by an employee of defendant's former counsel, Community Legal Services, merely indicated that the Complaint was "delivered" to additional defendant Stinson in Chester County.**fn** Proof of service, ex parte, by affidavit is not acceptable. Myers v. Cag, 23 Luz. L.R. 285 (1924). Acceptance pursuant to Rule 1011 contemplates that there be some sort of affirmation of it by the party served. See generally 1 Standard Pennsylvania Practice, ch.4, § 30 (1960). Delivery of the complaint to Stinson did not constitute an acceptance, assuming it was in fact received by him. Cf. Snedaker & Co., Inc. v. Wayne Title & Trust Co., 145 Pa. Super. 65, 70, 71, 20 A.2d 819 (1941).
Because this Court had no authority to grant the relief requested by defendant, and because there was no merit to her Petition, the Petition to Set Aside Award of Arbitrators was denied.
BY THE COURT: L. Anderson, J.