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NERKOWSKI v. YELLOW CAB COMPANY PITTSBURGH (11/28/69)

decided: November 28, 1969.

NERKOWSKI
v.
YELLOW CAB COMPANY OF PITTSBURGH, APPELLANT



Appeal from judgment of Court of Common Pleas of Allegheny County, Oct. T., 1964, No. 1985, in case of Raymond F. Nerkowski, Jr., a minor, by Isabelle Nerkowski, his parent and natural guardian, et al. v. Yellow Cab Company of Pittsburgh.

COUNSEL

David J. Armstrong, with him Richard S. Dorfzaun, and Dickie, McCamey & Chilcote, for appellant.

Henry E. Rea, Jr., with him Brandt, Riester, Brandt and Malone, for appellees.

Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Chief Justice Bell. Mr. Justice Cohen concurs in the result. Concurring Opinion by Mr. Justice Roberts.

Author: Bell

[ 436 Pa. Page 307]

On August 21, 1962, the minor plaintiff, Raymond F. Nerkowski, Jr., was struck by a taxicab owned by defendant and operated by one of defendant's employees. Plaintiffs filed suit seeking to recover damages for Raymond's alleged injuries, including brain damage and a personality disorder which allegedly will impair his earning capacity. In addition, Raymond's parents sought to recover the medical expenses occasioned by their son's injuries and the loss of his earnings up to his majority.

Although the accident occurred in 1962, the case was not praeciped for issue until April 20, 1966, and was not tried until January 13, 1969. This was the sixth time it had been on the trial list. During this time, several different attorneys had been employed by plaintiffs, while defendant had been represented primarily by David B. Fawcett, Esquire, of the law firm of Dickie, McCamey & Chilcote. During this time, plaintiffs had been granted two continuances.

On January 7, 1969, David B. Fawcett was appointed by the Governor of Pennsylvania to serve as a Judge

[ 436 Pa. Page 308]

    of the Court of Common Pleas of Allegheny County. When informed on January 9, 1969, that Fawcett would be unable to try the case, defendant's president, James P. Sinnott, chose David J. Armstrong, Esquire, another member of the firm of Dickie, McCamey & Chilcote, to represent the Cab Company in this case. This was Armstrong's first association with the case.

At the call of the trial list on January 10, 1969, the Court was informed that Armstrong would be substituted for Fawcett as trial counsel for defendant. Later in the afternoon, Armstrong had a conference with the Calendar Control Judge and the attorney for the plaintiffs. Armstrong explained that he was already committed to try a case before another Common Pleas Court Judge which was specially set at the top of the list called on January 10, 1969. Armstrong requested that the trial of appellant's case be postponed for one week or until the other trial in which he was participating was completed. Judge Fiok refused this request and insisted that this long-delayed case proceed to trial. On the afternoon of January 10, while Armstrong was engaged in the selection of a jury for his other case, the jury for this case was picked on that same afternoon (January 10th), with only the plaintiffs' attorney in attendance, and no one representing the defendant.

On January 13, 1969, Armstrong asked the trial Judge to hold the case on the trial list for one week or until his other case was completed. He also informed the Court that because the president of the Yellow Cab Company insisted that he alone handle the case, it would have to proceed without any defense counsel, if it was tried on that day. Although plaintiffs did not object to a one-week continuance, Armstrong's ...


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