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EXTON DRIVE- v. HOME INDEMNITY CO. (11/28/69)

decided: November 28, 1969.

EXTON DRIVE-IN, INC., APPELLANT,
v.
HOME INDEMNITY CO.



Appeal from judgment of Court of Common Pleas No. 4 of Philadelphia County, Dec. T., 1956, No. 902, in case of Exton Drive-In, Inc. v. The Home Indemnity Co. et al.

COUNSEL

Harry Norman Ball, with him Carl K. Zucker, for appellant.

Herbert A. Barton, with him Swartz, Campbell & Detweiler, for appellee.

David N. Rosen, with him Jon Grossman, and Rose, Sherwin & Seltzer, for appellee.

Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Pomeroy. Mr. Chief Justice Bell and Mr. Justice Eagen concur in the result. Dissenting Opinion by Mr. Justice Cohen. Dissenting Opinion by Mr. Justice Roberts. Mr. Justice Cohen joins in this dissent.

Author: Pomeroy

[ 436 Pa. Page 483]

This action was commenced in 1956 when Exton Drive-In, Inc. (Exton) filed a complaint in assumpsit against The Home Indemnity Co. (Home) seeking damages under a performance bond in which Home and W. Arnold Blythe (Blythe) had bound themselves jointly and severally to Exton in the sum of $52,000. The bond was conditioned on the full and prompt performance

[ 436 Pa. Page 484]

    by Blythe of a contract between him and Exton for the grading and paving of a site for an out-door motion picture theater. Exton alleged that this contract had not been fully and promptly performed and claimed damages in the amount of $42,500, being the profits allegedly lost because of delay in performance plus the estimated cost of remedying the defects in performance. Because the bond was a joint undertaking of Blythe as principal and Home as surety, Home impleaded Blythe as an additional defendant asserting joint and several liability. In his answer to the third party complaint, Blythe denied that he had breached the contract and brought a counterclaim against Exton for the unpaid balance of the contract price and for payment for certain additional work he had performed, allegedly at the request of Exton.

The case came on for trial before a judge sitting without a jury in May, 1960. Not until June, 1967, over seven years after the trial was completed did the judge enter his decision in this case. This decision was in the form of a verdict in favor of defendants Home and Blythe on plaintiff's original complaint and a verdict for Blythe on his counterclaim against Exton in the sum of $13,692.49; there were no findings of fact or conclusions of law. Exton filed numerous exceptions to this decision, which were overruled by the court en banc in June, 1968. This appeal followed. Not until April 18, 1969, seventeen days before this appeal was argued, did the trial judge file an opinion explaining the overruling of Exton's exceptions.

Judicial Delay

Appellant contends that the lower court's failure to order a new trial sua sponte because of the inordinate delay between trial and decision was an abuse of discretion.

[ 436 Pa. Page 485]

Appellant is correct that the court below had the power to grant a new trial sua sponte, if in its opinion justice so required. Getz v. Balliet, 431 Pa. 441, 446, 246 A.2d 108 (1968); Fisher v. Brick, 358 Pa. 260, 262, 56 A.2d 213 (1948). The question, then, is whether the court abused its discretion by failing to do so.

Nothing in the record indicates that any party was responsible for this delay; the fault appears to have been that of the trial judge. Such dereliction flouts the proud promise of the Magna Carta: "to none will we . . . deny, to none delay, either right or justice." It contravenes the guarantee of the Constitution of this Commonwealth that ". . . Every man . . . shall have . . . right and justice administered without sale, denial or delay." Article I, Section 11. It flies in the teeth of the statutory standard that the decision of a court sitting without a jury ". . . shall be filed . . . as early as practicable, not exceeding sixty days from the termination of the trial . . ."*fn1 The right to have justice administered without delay is a fundamental right which should not be infringed unless no other course is reasonably possible. Kelly v. Brenner, 317 Pa. 55, 59, 175 Atl. 845 (1934).

We said in General Foods Corp., 429 Pa. 266, 271, 239 A.2d 359 (1968), that as a matter of judicial administration we would not condone an eighteen month delay but that we could understand it. A seven year delay we neither condone nor understand; we can only

[ 436 Pa. Page 486]

    deplore it. While there may have been extenuating circumstances of which we have no knowledge, we must express our sense of dismay and chagrin that a delay so protracted could ...


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