PLESH et al.v.FOZI

Superior Court of PennsylvaniaNov 16, 1972
222 Pa. Super. 598 (Pa. Super. Ct. 1972)

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September 12, 1972.

November 16, 1972.

Appeals — Arbitration — Act of June 16, 1836, P.L. 715, as amended — Payment of record costs to prothonotary directory, not mandatory — Matters de minimis.

Meta v. Yellow Cab Company of Philadelphia, 222 Pa. Super. 469, followed.

HOFFMAN, J., filed a concurring opinion.

WATKINS and JACOBS, JJ., dissented.

Argued September 12, 1972.


Appeal, No. 400, Oct. T., 1972, from order of Court of Common Pleas, Trial Division, of Philadelphia, Aug. T., 1970, No. 1808, in re Stella Plesh and Lawrence Plesh, and Eldora Alfonsi and Eric Alfonsi v. Vincent Fozi, Jr., and Martex Packaging, Inc. Order reversed; petition for reconsideration or reargument refused April 16, 1973.

Proceedings upon appeal from award of arbitrators.

Order entered granting motion by defendants to quash appeal, opinion by HIRSH, J. Plaintiffs appealed.

Herbert Goldfeld, for appellants.

Howard M. Girsh, with him Steinberg Girsh, for appellees.

The quashing of the appeal is reversed for reasons stated in Meta v. Yellow Cab Company of Philadelphia, 222 Pa. Super. 469, 294 A.2d 898 (1972).

WATKINS and JACOBS, JJ., dissent.

Appellants contend that the trial court erred in quashing their appeal for failing to pay all costs within the time required to perfect the appeal.

Appellants paid a sum of $122.50 to cover the arbitrators' fees and the costs of filing the appeal and bond, but failed to reimburse the appellee for the jury trial fee.

This case is distinguishable from my dissent in Meta v. Yellow Cab Company of Phila., 222 Pa. Super. 469, 294 A.2d 898 (1972). The word "costs" used in the provision requiring that an appeal from an award of arbitrators be entered, all costs paid, and a recognizance filed within twenty days after the entry of the award has been defined as record costs. Thus, only the record costs need be paid within the twenty-day period. Judge Gerald FLOOD'S landmark opinion in Madrid Motor Corp. v. Cashan, 206 Pa. Super. 383, 386, 213 A.2d 284 (1965) specifically defined record costs as follows: "Accrued record costs include all record costs, namely, costs paid by the plaintiff to the prothonotary and to the sheriff, such as fees for filing and service of this complaint, fees for filing and service of the writ of attachment summoning the garnishee, discovery costs, notary fees for various affidavits filed of record, and fees for subpoenaes to bring witnesses to arbitration hearings. This viewpoint was cited approvingly by Judge WATKINS in Olsen v. Volpe, 213 Pa. Super. 498, 249 A.2d 835 (1968). Since jury fees are not includible as record costs, failure to pay these fees within twenty days is not sufficient reason to quash the appeal.

June 16, 1836, P.L. 715, § 27; January 14, 1952, P.L. (1951) 2087, § 4; March 15, 1956, P.L. (1955) 1279, § 1 (5 Pa.C.S.A. § 71).

I, therefore, concur in the result.

[*] Reporter's Note: The first page of these Memorandum Reports is arbitrarily numbered 701 in order that these cases may be paged finally in the Advance Reports and included currently in the Table of Cases Reported.