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LIGHTING UNLIMITED v. UNGER CONSTRUCTION COMPANY (09/18/70)

decided: September 18, 1970.

LIGHTING UNLIMITED, INC.
v.
UNGER CONSTRUCTION COMPANY, APPELLANT



Appeal from judgment of Court of Common Pleas, Civil Division, of Allegheny County, No. 3248 of 1968, in case of Lighting Unlimited, Inc. v. Unger Construction Company.

COUNSEL

Edward F. Urbanik, with him Royston, Robb, Leonard, Edgecombe, Miller & Shorall, for appellant.

H. Hudson, with him Meyer W. Gordon, Gerald B. Marcovsky, and Rothman, Gordon, Foreman and Groudine, for appellee.

Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. Opinion by Cercone, J.

Author: Cercone

[ 217 Pa. Super. Page 253]

Lighting Unlimited, Inc., Lighting Pittsburgh Division, a corporation, filed suit in assumpsit against Unger Construction Company, a corporation, to recover the sum of $1,693.66, together with interest, which it claims was the unpaid balance for various articles of personal property sold to defendant, plaintiff attaching to its Complaint a copy of its books of original entry insofar as same related to defendant's account.

Defendant filed an Answer admitting that certain of the items had been accepted by it, but denied that it had agreed to the prices set forth, alleging that the final prices were subject to further negotiation.

[ 217 Pa. Super. Page 254]

Suit was filed on October 31, 1968; Answer was filed on November 22, 1968. The amount claimed being less than $2,000.00, the matter was set for a February 4, 1969 hearing before a Board of Arbitrators. That hearing date was changed to April 16, 1969. On April 14, 1969, by stipulation of counsel, the hearing was continued generally. On August 18, 1969, by order of court, the hearing was set for November 24, 1969.

On November 21, 1969, M. S. Unger, President of defendant company, engaged Attorney E. F. Urbanik (who had represented defendant on prior occasions) to represent the Company at the hearing, Unger claiming that he was unable to contact defendant's counsel then of record. Attorney Urbanik agreed to represent him and entered his appearance in the case even though he knew at that time he could not defend the case on the date set for hearing as he would be engaged in the trial of another case in Federal Court. He telephoned plaintiff's counsel to secure agreement to another continuance, but his request was refused.

On November 24, 1969 Attorney Urbanik, prior to attending the trial of his Federal Court case, appeared before Judge Strauss of the Allegheny County Common Pleas Court and requested a continuance in this case. In view of the record of past continuances, the court refused the request and the case was ordered to proceed to hearing before the Arbitrators or defendant to suffer judgment in default of appearance. Defendant chose not to proceed with the hearing as scheduled before the Board of Arbitrators and the court entered a default judgment in the amount of $1,183.48 in favor of plaintiff and against defendant.

Defendant's petition for rule to show cause why the judgment should not be opened was ...


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