Appeal from order of Superior Court, April T., 1971, No. 546, affirming judgment of Court of Common Pleas, Civil Division, of Allegheny County, July T., 1968, No. 2362, in re Budget Laundry Company v. Carl P. Munter and Joseph S. Davis, trading as Allied Uniform and Towel Supply Company.
Murray S. Love and Seymour A. Sikov, with them Sikov & Love, for appellants.
Louis Vaira, with him Carl D. Smith, for appellee.
Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Mr. Justice Pomeroy concurs in the result. Concurring Opinion by Mr. Justice Roberts. Mr. Justice Nix and Mr. Justice Manderino join in this concurring opinion.
The instant appeal arises out of an action in assumpsit commenced in the Court of Common Pleas of Allegheny County. After the pleadings had been completed and the case placed at issue, it eventually reached the jury trial list in the Civil Division of that court. Appellants were represented by Attorney Murray S. Love of the law firm of Sikov & Love. The Pittsburgh Legal Journal of December 8, 1970, listed the case for the jury trial term commencing January 11, 1971, and specifically indicated that the case would be called on the daily trial list of January 19, 1971.
The case was indeed called on the daily trial list of January 19, 1971, and reached its turn for the selection of a jury on January 27, 1971.
When the case had been called on January 19, 1971, the calendar control judge was informed that Mr. Love was trial counsel in that case and that it could only be tried by him. On January 27, 1971, when the case was in position for the selection of a jury, the calendar control judge was informed that Mr. Love was then in trial before another judge of the same court and that he was next scheduled for trial in the United States District Court for the Western District of Pennsylvania. The calendar control judge nevertheless ordered that the jury selection process proceed, and when no one appeared to examine jurors on behalf of appellants, the chief minute clerk of the Civil Division exercised four challenges on behalf of appellants and a jury was selected and impaneled. By the following day, when the case was scheduled to be tried, Mr. Sikov of the firm of Sikov & Love, appeared before the trial judge and again sought a continuance of the case. By that time, Mr. Love's other case in the Court of Common Pleas of Allegheny County had concluded and he was engaged in trial in the United States District Court in a case which was estimated to require two or three days to try. At that point, the then-current jury trial term in the Court of Common Pleas had approximately three and one-half weeks remaining in it, and Mr. Love had only the case forming the basis for this appeal and one other case to be tried. Counsel for appellee had no other case on the then-current trial list to be tried. It was, therefore, readily apparent that if the case did not go to trial on January 28, 1971, it would, nevertheless, be tried within the then-current trial term. Despite this, the case was ordered to be tried, and since no counsel appeared for appellants, the case proceeded ex parte, and a verdict was returned in favor of appellee
in the amount of $21,909. Post-trial motions were filed and denied, and after entry of judgment on the verdict of the jury, an appeal was taken to the Superior Court. That court affirmed the judgment, and we allowed an appeal.
Needless to say, this type of appeal provides maximum difficulty for an appellate court. The courts of the Commonwealth have been striving mightily to reduce backlogs and to speed the course of litigation. We are all too aware of the extreme problems created, particularly in the large metropolitan counties of the Commonwealth, by calendar congestion and the attendant delays in the disposition of litigation. It is only by virtue of the adoption of strict calendar control that courts throughout the Commonwealth have been successful in coming to grips with this problem. We, of course, support the efforts of the courts of common pleas to solve the backlog problems. We are, nevertheless, constrained to conclude that the action of the court below in this instance constituted an abuse of discretion.
In Nerkowski v. Yellow Cab Co. of Pgh., 436 Pa. 306, 259 A.2d 171 (1969), we were faced with a similar problem, coming from the same court of common pleas. In that case, a member of a law firm who was scheduled to defend the action was appointed to the bench of the court of common pleas shortly before the case was scheduled to come to trial. Another member of his former law firm was selected by the defendant to represent it in the trial of the case. The calendar control court was informed of the substitution of trial counsel, and the substituted counsel then explained to the calendar control judge that he was already committed to try a case before another common pleas court judge, which case had been specially set at the top of the list. He therefore requested a continuance for one
week, or until the case in which he was then participating could be completed. This request was denied, the case was ordered to trial, proceeded ex parte and eventuated in a verdict and judgment for the plaintiff. We reversed and granted a new trial on the basis that the denial of a continuance was, in those circumstances, "undoubtedly an abuse of discretion." In Nerkowski, at page 309, we said: "While we can appreciate the lower Court's concern for the orderly and speedy administration of ...