Opinion
June 14, 1972.
September 15, 1972.
Appeals — Arbitration — Appeal by one defendant of no avail to another defendant — Entry of judgment against other defendant.
1. In compulsory arbitration, an appeal by one defendant is of no avail to another defendant, and a judgment entered against the latter, after the lapse of time in which to appeal, will not be opened or stricken.
Appeals — Review — Question not raised in court below — Stay of execution.
2. Where defendant contended that execution on a judgment might subject him to greater liability than the law provided for a joint tort-feasor, if it were determined in the existing appeal that the other tort-feasor had a valid release, it was Held that the question of whether execution should be stayed was not before the court below and was not properly before the appellate court.
Argued June 14, 1972.
Before WRIGHT, P.J., WATKINS, JACOBS, HOFFMAN, SPAULDING, CERCONE, and PACKEL, JJ.
Appeal, No. 557, Oct. T., 1972, from judgment of Court of Common Pleas, Trial Division, of Philadelphia, Sept. T., 1967, No. 1849, in case of Arlene Fante v. Philadelphia Transportation Company and Sol Berenson. Judgment affirmed.
Trespass for personal injuries.
Order entered dismissing petition by individual defendant to strike off judgment entered on award of arbitrators, opinion by SLOANE, J. Defendant appealed.
Herbert F. Holmes, Jr., for appellant.
Simon J. Denenberg, for appellee.
It is settled law that the mere appeal of one defendant in compulsory arbitration is of no avail to another defendant, so that a judgment entered after the lapse of appeal time will not be opened or stricken. Flouders v. Foster, 212 Pa. Super. 418, 243 A.2d 146 (1968). Appellant, therefore, is not entitled to the relief he seeks.
Appellant states that execution on the judgment may subject him to greater liability than the law provides for a joint tort-feasor, if it is determined in the existing appeal that the other tort-feasor had a valid release. The question of whether execution should be stayed was not before the court below and is not properly before us.
In the old case of Sterrett v. Ramsay, 2 Watts 91 (1833), it was held under the prior arbitration law that execution could not be had against a co-defendant until the appeal of a defendant was disposed of.
Judgment affirmed.