No. 1612 OCTOBER 1979, No. 1613 OCTOBER 1979, Appeal from the Order of the Court of Common Pleas of Montgomery County at Civil Action Nos. 76-19319 and 77-13517.
Allen L. Feingold, Philadelphia, for appellant.
David L. Shenkle, Doylestown, for appellees.
Spaeth, Brosky and Hoffman, JJ.
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This appeal is from an order quashing an appeal from arbitration as untimely. Appellant argues that the appeal was timely because the appeal period had been tolled by a stay of proceedings granted incident to a rule to show cause
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why the case should not be remanded to the arbitrators. The lower court found, however, that while a stay had initially been granted by one judge, another judge had crossed it out and that therefore the appeal period had not been tolled. The record is insufficient for us to determine the correctness of the lower court's order. We therefore remand for an evidentiary hearing, findings of fact, and a new order.*fn1
On November 30, 1976, appellant brought an action in trespass in Montgomery County against Mr. and Mrs. Dean Chagan and Franklin A. Chagan. The complaint alleged that Franklin Chagan owned a certain property in Bala Cynwyd; that Mr. and Mrs. Dean Chagan were in possession of the property; and that on July 24, 1975, while at or near the property, appellant was bitten by the Chagans' dog. This action was docketed under number 76-19319.
On January 17, 1977, Mr. and Mrs. Dean Chagan filed an answer to the complaint alleging, among other things, that Franklin A. Chagan had died. Appellant then filed an action in Philadelphia against the Chagans and Joyce Chagan, executrix of the estate of Franklin Chagan, alleging the same injury as alleged in the Montgomery County action. On preliminary objections to venue, the action was transferred from Philadelphia to Montgomery County, where it was docketed under number 77-13517.
Appellant petitioned to have both actions consolidated under the earlier docket number, 76-19319. This petition was granted, and was properly docketed at 76-19319, but was never docketed at 77-13517. Despite the consolidation, everything appellant filed in the next fourteen months, with just one exception, was filed only at 77-13517.
Among the papers thus filed only at the "wrong" docket number was appellant's praecipe for arbitration. On November 10, 1978, an ...