Rosenbaum v. Drucker

• Decision Date: 22 March 1943
• Docket Number: 253
• Citation: 346 Pa. 434,31 A.2d 117
• Parties: Rosenbaum et al. v. Drucker et al., Appellants
• Court: Pennsylvania Supreme Court

31 A.2d 117

346 Pa. 434

Rosenbaum et al. v. Drucker et al., Appellants

No. 253

Supreme Court of Pennsylvania

March 22, 1943

January 6, 1943, Argued

Appeal, No. 253, Jan. T., 1942, from decree of C.P. No. 3 Phila. Co., June T., 1941, No. 3553, in equity, in case of Charles Rosenbaum et al. v. Michael Drucker et al. Decree affirmed.

Bill in equity.

Controversy referred to arbitrators, upon stipulation approved by court. Decree entered affirming report of arbitrators, opinion per curiam. Defendants appealed.

Decree affirmed. Costs to be paid by the Appellants.

Samuel E. Kratzok, with him Abraham Hofferman, for appellants.

Nathaniel Shapiro, for appellees.

Before MAXEY, C.J.; DREW, LINN, STERN, PATTERSON, PARKER and STEARNE, JJ.

OPINION

MR. JUSTICE ALLEN M. STEARNE:

We do not propose to dignify this regrettable Church controversy by an elaborate discussion. Had the contending factions accepted and carried out, in good faith, the initial conclusions and directions of the arbitrators of their own selection, this litigation would have been avoided. The arbitrators made a wise and constructive adjudication of the whole controversy. Because the parties failed to abide by, and follow such directions the present bill in equity was filed and issue joined. This returned the controversy to its original status. Once again, by stipulation of counsel, the matter was referred to the same arbitrators. Under the terms of the reference, of necessity, the arbitrators were required to find who were the members of the congregation, and who were the duly elected officers. The faction which lost now seeks to review the procedure before the arbitrators and raises all manner of objection and exception to everything which has transpired, both before the arbitrators and in the court below.

Appellants protest that the arbitration award was signed by but two of the three named arbitrators. We agree that the procedure was under the common law and not under the Arbitration Act of April 25, 1927, P.L. 381; 5 P.S. Section 161. In Sukonik v. Shapiro, 333 Pa. 289, we held that this statute did not abrogate common law arbitration, but provides a more effective remedy which is cumulative, not exclusive. As neither side attempted, in any particular, to follow the Arbitration Act, it is manifest that the award of the arbitrators was a common law award: Isaac et al. v. D. & C. Mutual Fire Insurance Company, 301 Pa. 351-358.

Under the general rule of common law, where an award deals with private, as distinguished from public interests, all of the arbitrators must concur therein. However, there exists a well defined exception to the rule. The parties may agree that the award may be made by a majority of the arbitrators. Such intent may be gathered from the very fact of submission and from the attendant circumstances: See Sukonik v Shapiro, supra, page 292. It is manifest that these arbitrators were originally named, and thereafter re-named, not only because of their peculiar knowledge concerning regulations and procedure with respect to the method of joinder of members of this congregation and the election of their officers, but because certain of the arbitrators were obviously partisan in their views. A study of the record, (particularly relating to the affidavits filed in support of the exceptions) and statements in Appellants' paper book, conform this view beyond all reasonable doubt. Under the circumstances of...