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11/06/97 ROBERT POWER v. GUISEPPE TOMARCHIO AND

November 6, 1997

ROBERT POWER, JR., A MINOR, BY ROBERT AND CARLA POWER, NATURAL PARENTS AND GUARDIANS AND ROBERT POWER, SR., IND., APPELLEES
v.
GUISEPPE TOMARCHIO AND ANDREA DINAPOLI, APPELLANTS



Appeal from the JUDGMENT ENTERED March 07, 1997. In the Court of Common Pleas of Delaware County, Civil, No. 94-6346.

Before: Kelly, Schiller, And Brosky, JJ. Opinion By: Schiller, J. Kelly, J. concurs in the result.

The opinion of the court was delivered by: Schiller

OPINION BY: SCHILLER, J.

Filed November 6, 1997

Appellants, Guiseppe Tomarchio and Andrea Dinapoli, appeal from the orders entered by the Court of Common Pleas of Delaware County denying appellees' petition to settle a minor's claim, and denying their own motions to set aside the arbitrators' award and to allow an appeal nunc pro tunc. We affirm.

FACTS:

The procedural history of this case is intrinsic to understanding appellants' unusual appellate issue. The underlying action began when appellee, Robert Power, Jr., a minor, by his parents, Robert and Carla Power, and Robert Power, Sr., sought damages for injuries inflicted upon him by appellants' three Rottweiler dogs. Appellants then filed a cross-claim against appellees, Robert and Carla Power, based upon their alleged failure to properly supervise Robert Power, Jr.'s activities.

At the close of the pleadings, the case was assigned to the Honorable Clement J. McGovern, Jr., who held a pre-trial settlement conference. Judge McGovern estimated that the minor's claim was worth $15,000.00. Appellees agreed to accept this amount, but appellants refused this recommendation. The parties requested that the case proceed to arbitration. The parties, allegedly at Judge McGovern's insistence, then agreed that the arbitration would be binding. *fn1 However, prior to the Court entering the order remanding this case for binding arbitration, counsel for appellants and appellees orally entered into a high/low agreement, whereby Robert Powers Jr. (the minor) was assured a recovery of no less than $7,500.00, but no more than $20,000.00. For reasons that do not appear of record neither counsel informed Judge McGovern of this agreement. As was the case with Judge McGovern, the arbitrators were not advised of the high/low agreement.

The arbitrators heard the case on February 9, 1996. Following the hearing an award was entered in favor of Robert, Jr. for $35,000.00. *fn2 No appeal was filed. Thereafter, appellees' counsel petitioned the Court of Common Pleas for permission to accept an amount equal to the high end of the high/low agreement, i.e., $20,000.00, in settlement of the minor's claim. *fn3 This petition was heard by the Honorable Robert A. Wright, Sr., who denied the petition and refused to approve a settlement for less than the arbitration award. In response appellants moved to set aside the award and sought permission to appeal the arbitration award nunc pro tunc. This motion was also denied, and the Judge entered judgment in favor of appellees on the award. This appeal followed. *fn4

Discussion

Appellants now raise three issues for appellate review: 1) whether the trial court erred in refusing to enforce the high/low agreement entered into by the parties; 2) whether the trial court erred in ordering the parties to proceed to binding arbitration; and 3) whether the trial court erred in refusing to set aside the arbitration award, or to allow appellants to appeal nunc pro tunc.

We begin our analysis by emphasizing that the Supreme Court of Pennsylvania has made it clear that matters involving minors are never minor matters. Rule 2039 of the Pennsylvania Rules of Civil Procedure governs the role of the judiciary in actions where a minor is a party:

Rule 2039. Compromise, Settlement, Discontinuance and Distribution

(a) No action to which a minor is a party shall be compromised, settled or discontinued except after approval by the court pursuant to a petition ...


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