
    Cassidy v. Vandegrift
    
      
      Bernard, P. Carey, Jr., for plaintiffs.
    
      Peter A. Dunn, for defendant.
    December 8, 1970.
   SAND, J.,

The court has before it cross petitions arising out of a compulsory arbitration for damages to a garage. The arbitrators’ award, dated May 1, 1970, was in favor of plaintiffs and against defendant in the amount of $948. May 12, 1970, defendant filed an appeal from the award in which the affidavit of non-delay omitted these words, “because he firmly believes injustice has been done.” Defendant filed a bond for an amount far in excess of twice the legal costs accured and repaid the costs of arbitration to the county, but neglected to repay plaintiffs’ costs to them within the 20-day appeal period.

May 28, 1970, plaintiffs filed a petition and rule requesting the court to dismiss appeal for defendant’s failure to include the above-quoted words in the affidavit and for failure to repay costs. Defendant filed an answer thereto and also, on June 17, 1970, a petition and rule to permit him to file an appeal from the award of arbitrators in form strictly complying with the statute nunc pro tunc. Plaintiffs filed an answer, making the matter ripe for decision.

After consideration of briefs and argument of counsel before the court en banc, we are persuaded that this case should be decided in accordance with the language and liberal spirit of Beth-Alien Sales Company v. Hartford Insurance Group, 217 Pa. Superior Ct. 42. Where defendant “has made an honest effort to file his appeal in accordance with the statute, and has substantially complied with the requirements, justice will not permit his appeal to be dismissed with prejudice”: 217 Pa. Superior Ct. at 47. See also Hanco Steel Products Co. v. Clark, 30 D. & C. 2d 97, and Betz v. Horn, 10 Chester 552, where costs were not timely paid by appellants.

Accordingly, we enter the following:

ORDER

And now, to wit, this December 8, 1970, it is ordered and decreed that the petition of plaintiffs, James P. Cassidy and Dolores R. Cassidy, to dismiss the appeal of Edward Vandegrift be and the same is hereby denied; the petition of Edward Vandegrift for permission to file an appeal from the award of arbitrators in the form submitted by the petition, and to perfect his appeal by paying record costs to plaintiffs, be and the same is hereby granted nunc pro tunc.  