Appeal, No. 21, Oct. T., 1963, from judgment of Court of Common Pleas No. 2 of Philadelphia County, Dec. T., 1961, No. 4389, in case of Helen Zebroski Downs v. Samuel Scott. Judgment affirmed.
Sheldon Tabb, for appellant.
Jerome Taylor, for appellee.
Before Rhodes, P.j., Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ.
[ 201 Pa. Super. Page 279]
The defendant asks a new trial for three reasons: (1) the court below abused its discretion in refusing the defendant's request to withdraw his waiver of jury trial, (2) the verdict was against the weight of the evidence, and (3) the damages awarded were excessive.
1. A waiver of jury trial was endorsed upon the plaintiff's complaint. In such case, if the defendant desires a jury trial, Rule 1025 * (b) of the Court of Common Pleas of Philadelphia County requires him to endorse a demand for a jury trial upon his answer or his praecipe for appearance. The defendant's praecipe
[ 201 Pa. Super. Page 280]
contained no demand for a jury trial and therefore under the rule constituted an agreement for a trial without a jury.
Later the defendant's counsel filed a petition requesting a jury trial, averring that he was outside the country at the time when his appearance was filed by his secretary who inadvertently, and contrary to his instructions, failed to demand a jury trial. The petition was dismissed.
When the case was later called for trial, the defendant made no further demand but went to trial before Judge DOTY without a jury.
Since mere inadvertence of counsel or his secretary is relied upon by the defendant, whether his petition should be granted is a matter for the discretion of the court below. Here a relegation of the case to the jury trial list would have caused a substantial delay of the trial. We cannot say that the court below abused its discretion in refusing a jury trial following a waiver, when the ground relied upon was that the defendant's counsel, an active trial lawyer, upon leaving his office to go abroad, did not make proper arrangements for filing pleadings or appearances ...