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GILMER v. PHILADELPHIA TRANSPORTATION COMPANY (10/28/75)

decided: October 28, 1975.

GILMER
v.
PHILADELPHIA TRANSPORTATION COMPANY, APPELLANT



Appeal from judgment of Court of Common Pleas, Trial Division, of Philadelphia, April T., 1968, No. 857, in case of Margaret Gilmer v. Philadelphia Transportation Co. n/k/a Southeastern Pennsylvania Transportation Authority.

COUNSEL

Lewis H. Van Dusen, Jr., with him F. Ross Crumlish, and Drinker, Biddle & Reath, for appellant.

James F. Mundy, with him Raynes, McCarty & Binder, for appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Jacobs, J. Concurring Opinion by Van der Voort, J. Watkins, P.j., joins in this concurring opinion. Dissenting Opinion by Price, J.

Author: Jacobs

[ 237 Pa. Super. Page 58]

This appeal is taken from a judgment in favor of appellee in the amount of $28,198.88, entered following a non-jury trial before Judge Forer. Appellant's primary argument is that its demand for jury trial should not have been denied below. We agree with that contention and therefore reverse and remand for a new trial.

On April 11, 1968, appellee filed a Complaint in Trespass averring that she had sustained injuries due to appellant's alleged negligent operation of one of its buses.

[ 237 Pa. Super. Page 59]

Appellee's complaint was marked "Jury Trial Waived." Appellant thereafter entered its appearance on April 20, 1968, and, pursuant to local court rules, a certificate of readiness to proceed to a non-jury trial was filed on February 24, 1970. Appellee petitioned for major case listing on January 24, 1972. This petition was denied without prejudice in July, 1972. In September, 1973, appellant moved to have appellee's certificate of readiness stricken so that a second medical examination of appellee could be performed. This motion was granted. Appellee again filed a certificate of readiness, certification of service and a petition for major case listing on January 30, 1974. On February 4, 1974, appellant demanded a jury trial, which demand was denied. A non-jury trial was held, resulting in the judgment which is appealed from here.

Philadelphia Civil Rule 909(a), in force at the time of appellant's demand for jury trial, provided as follows:

"When a certificate of readiness if [sic] filed in an action involving a claim in excess of $10,000.00, a jury trial may then be demanded upon the payment of the required jury fee and the consolidated trial list fee of $25.00.

If no such demand and payments be made any other party may demand a jury trial within 10 days from the filing of a certificate of readiness, by praecipe and the payment of the jury fee and the consolidated trial list fee."

Philadelphia Civil Rule 909(a) also included a "clarifying" order, issued by the Administrative Judge of the Court of Common Pleas in Philadelphia, which order provided:

"In order to do away with any uncertainty that may exist with respect to the application of Pennsylvania Rule of Civil Procedure 1007.1(a) which stated: 'Jury Trial. Demand. Waiver.'

In any civil action or proceeding in which the right to a jury trial exists, that right shall be deemed waived unless the party files and serves a written

[ 237 Pa. Super. Page 60]

    demand for a jury trial not later than twenty (20) days after service of the last permissible pleading or by a separate writing, the following shall ...


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