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NEELY v. J. A. YOUNG & CO. (06/13/62)

June 13, 1962

NEELY
v.
J. A. YOUNG & CO., INC., APPELLANT.



Appeal, No. 126, April T., 1962, from judgment of County Court of Allegheny County, No. 1710 of 1960, in case of John H. Neely et at. v. J. A. Young & Co., Inc. Judgment reversed.

COUNSEL

Albert F. Paslow, for appellant.

Linn V. Phillips, Jr., with him Neely & Will, for appellees.

Before Rhodes, P.j., Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ.

Author: Montgomery

[ 198 Pa. Super. Page 198]

OPINION BY MONTGOMERY, J.

Seeking to recover fees in the sum of $1,707.80 for legal services, plaintiffs-appellees filed in the County Court of Allegheny County a complaint in assumpsit with a praecipe for the appointment of arbitrators pursuant to the compulsory provisions of the Arbitration Act of June 16, 1836, P.L. 715, § 8, 5 P.S. 21, and the County Court Arbitration Rules which provide (inter alia) that all civil cases wherein the amount in controversy is $2,000 or less (with certain exceptions not applicable herein) "... automatically shall be submitted to ... a Board of Arbitrators, ..." After defendant's answer to the complaint was filed, the matter was heard by a Board of Arbitrators which rendered a decision for plaintiffs. Defendant appealed in due course, fully complying with the act and rules, and on its appeal it affixed a statement, "Jury Trial Demanded," signed by its attorney. Thereafter the matter came on for pre-trial before SMITH, J., who ignored the demand for a jury trial and ordered the case tried non-jury, presumably, because the demand for a jury trial had not been filed with the answer.

On October 10, 1961, a non-jury trial was conducted before BECK, J., in the absence of defendant and over the objection of defendant's counsel, who appeared for the sole purpose of objecting to the non-jury procedure and to again request a jury trial. Judgment was again entered for plaintiffs, and after dismissal of exceptions to the judgment as violative of its legal and constitutional rights, defendant appealed to this Court.

The only issue now to be resolved is whether defendant, by its failure to demand a jury trial at the

[ 198 Pa. Super. Page 199]

    time it filed its answer to the complaint, waived its right to one.

The right to trial by jury "as heretofore" assured by article I, section 6, of the Pennsylvania Constitution may be dispensed with "by agreement filed" in civil cases under article V, section 27. Pursuant to the latter provision the legislature enacted the Act of May 5, 1911, P.L. 198, § 8, since amended several times, and as presently stated (17 P.S. 634(pp)), provides that a litigant desiring a trial by jury, "... shall, at the time of filing his statement, endorse thereon, or file separately, a written demand ... and, if no such demand is made by the plaintiff, but a trial by jury is desired by the defendant, he shall in like form, at the time of filing his answer, demand a trial by jury. ..." It provides further that if neither party files such a demand he shall be deemed to have waived his rights to same; and also, that a demand for a jury trial may be withdrawn with the consent of the other party. However, it is silent on the right to withdraw a waiver and renew the right to a jury trial.

The failure to follow an established procedure to secure a jury trial has been held to be a waiver in satisfaction of the provision of article V. section 27, of the Constitution. Wright v. Barber, 270 Pa. 186, 113 A. 200; Anderson v. Carnegie Steel Company, 255 Pa. 33, 99 A. 215. The "right" to a jury trial may also be waived by express agreement. Krugh v. The Lycoming Fire Insurance Company, 77 Pa. 15, or by implication, Cohen v. Sykes, 180 Pa. Superior Ct. 427, 118 A.2d 208, wherein the defendant, although first ...


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