Appeals from order of Court of Common Pleas, Civil Division, of Allegheny County, April T., 1971, Nos. 481 and 482, in case of Charles Albright, Administrator of the Estate of Mary Hayes, deceased v. The Wella Corporation.
Mark B. Aronson, with him Behrend and Aronson, for appellant.
Charles J. Duffy, Jr., with him Lancaster, Mentzer, Coyne & Duffy, for appellee.
Watkins, P. J., Jacobs, Hoffman, Cercone, Price, and Van der Voort, JJ. (Spaeth, J., absent). Opinion by Jacobs, J. Price and Van der Voort, JJ., concur in the result. Spaeth, J., did not participate in the consideration or decision of this case.
[ 240 Pa. Super. Page 564]
This is an appeal from an order denying appellant's motion for trial by jury entered below. We affirm the order of the lower court for reasons which appear following a review of the relevant facts.
Appellant is the administrator of the estate of Mary Hayes, who, on January 14, 1971, during her lifetime, filed complaints in assumpsit and in trespass against appellee The Wella Corporation to recover damages for personal injuries allegedly suffered as a result of using appellee's products. Following discovery proceedings, plaintiff Mary Hayes' causes were consolidated and ordered to arbitration. An arbitration hearing was held on April 20, 1972 at which counsel for plaintiff chose to produce no evidence. An arbitration award was thereafter entered for defendant with the notation that the plaintiff had not appeared.
On May 2, 1972 plaintiff gave notice of appeal and requested a jury trial. Counsel for defendant The Wella
[ 240 Pa. Super. Page 565]
Corporation then moved for an order precluding plaintiff from offering testimony or producing other evidence at the forthcoming trial de novo. This motion was based on the effect of Allegheny County Court of Common Pleas Rule 303J in light of plaintiff's voluntary nonparticipation in the arbitration proceeding. Rule 303J, a local rule of the Allegheny Court of Common Pleas then in force, related to appeals from compulsory arbitration and provided that:
"[e]xcept by allowance of the court for good cause shown, no witness, other than an after discovered witness, may be called by a party at any subsequent trial who was not called as a witness by that party at the arbitration hearing."
As has been previously noted, plaintiff produced no witnesses at the arbitration hearing. In order to overcome the effect of the rule plaintiff's counsel submitted arguments in support of an exception thereto. Plaintiff sought thereby to counter defendant's motion by securing permission from the court for her physician to testify as a witness on her behalf at the subsequent trial. However, the calendar control judge found that plaintiff had not shown good cause why the physician had not testified previously. Consequently, plaintiff having failed to introduce any evidence or testimony at the arbitration hearing or to show good cause why she had not done so, defendant's motion was granted and an order was entered precluding her from "offering testimony from any witness or producing any other evidence at any subsequent hearing or trial of these consolidated actions."
As a result of the preceding plaintiff was unable to present a prima facie case and a compulsory non-suit was granted on ...