Perin v. Gochnauer

• Citation: 173 Pa.Super. 609,98 A.2d 755
• Parties: PERIN v. GOCHNAUER.
• Decision Date: 14 July 1953
• Court: Superior Court of Pennsylvania

98 A.2d 755

173 Pa.Super. 609

PERIN v. GOCHNAUER.

Superior Court of Pennsylvania.

July 14, 1953

Suit in trespass on cause of action arising out of an automobile collision. The defendant appealed from an adverse judgment before a justice of the peace. The Court of Common Pleas of Dauphin County to No. 613 September Term, 1951, William H Neely, J., quashed appeal but allowed defendant's motions for an appeal nunc pro tunc, and plaintiff appealed. The Superior Court, No. 36 March Term, 1953, Reno, J., held that when defendant's defective appeal was due to failure of justice of peace to perform his duty of demanding the costs before making and delivering of the transcripts, order allowing appeal nunc pro tunc was not an abuse of discretion.

Order affirmed.

Joseph J. Laws, Hershey, for appellant.

John B. Pearson and Storey, Bailey & Rupp, Harrisburg, for appellee.

Before RHODES, P. J., and RENO, ROSS, and WRIGHT, JJ.

RENO Judge.

Plaintiff-appellant sued defendant-appellee in trespass before a justice of the peace on a cause of action arising out of an automobile collision and recovered a judgment for $280.22. Defendant appealed to the court below and, upon plaintiff's motion, the appeal was quashed. Defendant's timely motion for an appeal nunc pro tunc was allowed, and from that order plaintiff appealed to this Court.

A party appealing from the judgment of a justice of the peace may choose between two methods: (1) He may pay the costs and enter bail absolute in double the probable amount of costs accrued and likely to accrue, with one or more sureties, conditioned for the payment of all costs accrued or that may be legally recovered against appellant; or (2) enter good and sufficient bail absolute for the payment of debt, interest and costs that have accrued or will accrue upon the affirmance of the judgment, in which case appellant is not required to pay any costs before taking the appeal. Acts of March 20, 1845, P.L. 188, 42 P.S. § 921, and May 29, 1907, P.L. 306, 42 P.S. § 928; Lentz v. Kittanning Real Estate Co., 72 Pa.Super. 513.

In the instant case, an attempt was made to follow the first method. Sufficient bail, with a qualified surety, was entered to pay the costs accrued or likely to accrue but not all the costs were paid. The costs amounted to $9.20, and only $2.75, the costs of the appeal transcript, were paid to the justice. For that reason, the court below, properly quashed the appeal. New Castle Metal Products Co. v. Campbell, 131 Pa.Super. 367, 200 A. 118; Carbaugh v. Sanders, 13 Pa.Super. 361.

However, the court below found, and its findings is amply supported by the evidence, that the defective appeal was due to the fault of the justice of the peace, and upon that ground allowed an appeal nunc pro tunc. The judgment was rendered on November 2, 1951, and during the following week an adjuster for defendant's insurance company notified the justice that defendant would appeal. On November 19, 1951, the bond was entered and on the following day the adjuster paid $2.75 for the transcript to the justice, which is the only sum demanded by the justice. The justice advised him that the transcript was not then completed and that it would be mailed. The adjuster did not receive the transcript until November 23, 1951, the last day for perfecting the appeal, and on the transcript appeared the statement that the costs amounted to $9.20.

The adjuster was a layman, not acquainted with the legal requirements for taking an appeal. Had he been informed that the law required the payment of the accrued costs, he would undoubtedly...