Opinion
June 10, 1968.
December 12, 1968.
Appeals — Final or interlocutory — Order dismissing motion to quash appeal from award of arbitrators for failure to pay record costs.
1. An appeal from an order dismissing a motion to quash an appeal from an award of a board of arbitration for failure to pay all the record costs accrued to the date of the appeal is interlocutory and may be quashed.
Appeals — Arbitration — Payment of record costs accrued to date of appeal — Statutory attorney's fee — Prothonotary's charge for filing bill of costs — Acts of February 22, 1821, P.L. 50, and Act of April 2, 1868, P.L. 3.
2. The statutory attorney's fee is based on the Act of February 22, 1821, P.L. 50, and the Act of April 2, 1868, P.L. 3; it becomes payable only if a judgment is entered or a nonsuit or discontinuance is obtained.
3. The filing of a bill of costs is a procedural step to secure payment of costs not reflected in the record and is entirely separate and independent of the actual litigation.
4. In order to recover the fee for filing a bill of costs, it should be included in the bill of costs as an item of costs not necessarily a record cost reflected by the docket.
5. In this case, in which it appeared that all costs of record were paid by defendant except fifty cents, representing the prothonotary's charge for filing a bill of costs, it was Held that the court below properly dismissed plaintiffs' motions to quash appeals from the award of arbitrators.
JACOBS, J., concurred in the result.
Argued June 10, 1968.
Before WRIGHT, P.J., WATKINS, MONTGOMERY, JACOBS, HOFFMAN, SPAULDING, and HANNUM, JJ.
Appeals, Nos. 714 and 715, Oct. T., 1967, from order of County Court of Philadelphia, Sept. T., 1966, Nos. 11293C and 5656-A, in cases of Richard Olsen v. Sam Volpe; and George S. Lamantia v. Sam Volpe and Richard Olsen. Appeals quashed; reargument refused December 31, 1968.
Proceeding upon motions of plaintiff to quash appeals of defendant from arbitration awards.
Orders entered dismissing motions; opinion by MONTEMURO, JR., J. Plaintiff appealed.
Hugh M. Odza, with him Wissow and Odza, for appellant.
Richard S. March, with him Gerber, Galfand Berger, for appellee.
These appeals are from orders of the County Court of Philadelphia dismissing appellants' motions to quash appeals from the award of a Board of Arbitration in each case for failure to pay all the record costs accrued to the date of the appeals.
These appeals are interlocutory and must be quashed. Caples v. Klugman, 202 Pa. Super. 517, 198 A.2d 342 (1964); Budde v. Sandler, 204 Pa. Super. 36, 201 A.2d 247 (1964). In order to dispel any doubt as to the propriety of the orders of the court below we will express our views on the procedure followed.
In the case of Lamantia v. Volpe and Olsen, all accrued costs were admittedly paid and the order dismissing the motion to quash was proper. In the case of Olsen v. Volpe all costs of record were paid by appellee except fifty cents, representing the prothonotary's charge for filing a bill of costs. In the court below the appellant contended that a "statutory attorney's fee" in the sum of three dollars was not paid. The court below properly held: "The statutory attorney's fee is based on the Act of February 22, 1821, P.L. 50, 17 Pa.C.S.A. § 1635 and the Act of April 2, 1868, P.L. 3, 17 Pa.C.S.A. § 1636. The attorney's fee of $3.00 becomes payable only if a judgment is entered or a non-suit or discontinuance is obtained."
In cases docketed with the prothonotary there are two distinct types of costs incurred, i.e., those docketed by the prothonotary and paid to him and those incurred by counsel independent of the prothonotary. In Madrid Motor Corp. v. Cashan, 206 Pa. Super. 383, 213 A.2d 284 (1965), these were noted 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. The purpose of a bill of costs is to place upon the record only such costs as are not reflected in the record, . . . .".
It should be noted that a bill of costs may not have been filed of record and in such event would not have to be paid at the time of the appeal, also counsel could waive payment of his costs independently accrued. It is apparent that the filing of a bill of costs is a procedural step to secure payment of costs not reflected in the record and is entirely separate and independent of the actual litigation. In order to recover the fee for filing a bill of costs, it should be included in the bill of costs as an item of costs not necessarily a record cost reflected by the docket.
Order affirmed.
Appeals quashed.
JACOBS, J., concurs in the result.