Huggins v. Neill

Opinion by

Rice, P. J.,

(after stating the facts as set out in above statement of facts) :

It is argued, that, as the parties waived the right of trial by jury, and agreed to a “ legal arbitration,” the law ought to hold them to their agreement. But the question is not whether the submission to arbitration was revocable at the mere will of one of the parties — being, by rule of court, under the statute, of course it was not — but whether it was revoked by operation of law upon the death of the arbitrator. A voluntary submission, coupled with an agreement that the prothonotary may enter judgment on the award, is revoked by the death of the arbitrator if no method is provided in the agreement for filling his place. This is put on the ground that a power is terminated by the death of the person upon whom it is conferred, and that a submission to arbitration is like the delegation of any other power: Potter v. Sterrett, 24 Pa. 411; Shreiner v. Cummins, 63 Pa. 374, 378. So far as the present question is concerned, the only difference between such an arbitration and the one under consideration is, that the one is regulated by the agreement of the parties, and the other by the statute. Where, in the former case, the agreement, or, in the latter case, the statute fails to provide a mode for filling a vacancy, the death of the arbitrator, before making an award, must necessarily operate to revoke the submission, and this is a result which the parties must be presumed to have contemplated when they chose the tribunal. The proceedings whereby the “ legal arbitrator ” was chosen in this case were in strict conformity to the provision of the act of 1870. The third section of that act provides that the method of choosing, service of notice, length of rules, and fixing times of hearing, shall be the same as under the lay or compulsory arbitration law. Under the compulsory arbitration law the functions of the prothonotary are confined to the first appointment, and are not called into exercise until the parties have failed to agree. When an appointment has been made in any of the modes prescribed by the law, his authority under the rule of reference is at an end. He has not authority to fill vacancies, nor even to call the parties together for that purpose, and the section which authorizes the arbitrators to fill them is, of course, not applicable here. True the parties might fill the vacancy by a new agreement, but there is nothing in the statute which compels them to make a second choice, and there is no person who would succeed to the powers of the chosen arbitrator, as there was in the case cited by the defendant’s counsel (R. R. Co. v. McGrann, 33 Pa. 530). There the engineer of the company was the arbitrator virtute officii, here the reference was to a particular person. Nor is there any analogy to an agreement to try a case without a jury, under the act of 1874. There the death or resignation, or the expiration of the term, of the judge, may not terminate the agreement, for the reason that it is, properly, not an agreement to a trial before a particular judge, but by the court, which never dies. There being no provision for filling the vacancy, the arbitration was as fully ended as if it were a lay arbitration under the act of 1836, and the arbitrator or arbitrators had died before making an award. In a somewhat similar contingency it was held that a proper course was to apply to the court for a rescission of the rule: Wilson v. Cross, 7 W. 495. The court was clearly right in following that suggestion in the present case.

The case is still pending, and no final judgment has been entered. It is, to say the least, extremely doubtful whether an appeal lies from such an order. See Straub v. Smith, 2 S. & R. 382; Kendrick v. Overstreet, 3 S. & R. 356; Erie Bank v. Brawley, 8 W. 530. But it is unnecessary to consider that question as we are clearly of opinion that the learned judge below committed no error in striking off the rule.

Order affirmed.