
    Bogart v. The Bloomsburg Water Company
    
      Elwood R. Harding, for plaintiffs.
    
      David C. Dickson, Jr., for defendant.
    August 24, 1977
   MYERS, P.J.,

Following trial of the instant case, plaintiffs filed a bill of costs. Defendant subsequently filed exceptions, wherein defendant asserts: (1) that witness fees need not be paid to witnesses appearing at arbitration proceedings; and (2) that witness fees need not be paid to witnesses who are not subpoenaed. We disagree with both of defendant’s contentions.

In our view, witness fees may be claimed for any witness who provides material and necessary testimony. We see no reason to restrict fees to those witnesses who are subpoenaed.

“Service of a subpoena by a party to a suit affords no assurance to the opposite party that the witness subpoenaed is material.” Barton v. Johnson, 85 D. & C. 363, 364 (1953). Conversely, witnesses who are not subpoenaed frequently do provide material testimony.

Accordingly, we decline to adopt the narrow rule set forth in Commonwealth v. Taylor, 59 Montg. 106 (1943), which is cited by defendant. Rather, we intend to follow the holding in Barton: if a witness presents material and necessary testimony, then his fees may be taxed; any other distinction would be arbitrary and purposeless.

We also conclude that witness fees may be claimed for witnesses appearing before a board of arbitrators. In this jurisdiction, arbitration proceedings are mandatory where the amount claimed is less than $5,000. Arbitrations are, moreover, subject to the same evidentiary standards and burdens of proof as jury trials. Hence, a party who recovers a claim after arbitration should be entitled to receive the same types and amounts of damages as one who prevails in a trial by jury. Accordingly, we conclude that witness fees may be taxed as costs in arbitration proceedings.

Since our decision concerning taxing costs in arbitrations is primarily based upon the court’s supervisory powers, and since we desire to avoid undue confusion, this opinion applies to the instant case and to other cases in which the arbitrators’ decision is handed down on or after the date of issuance of this opinion. Our decision is not, however, retroactive.

ORDER

And now, August 24, 1977, plaintiffs’ bill of costs taxing witness’ fees as part of the costs of these proceedings is approved, and defendant’s exceptions thereto are dismissed.  