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AUGUSTINE K. LEE v. CEL-PEK INDUSTRIES (12/02/77)

decided: December 2, 1977.

AUGUSTINE K. LEE, INDIVIDUALLY, AND TRADING AS LEE'S KARATE INSTITUTE, APPELLEE,
v.
CEL-PEK INDUSTRIES, INC., APPELLANT



No. 225 April Term, 1976, Appeal from the Order of October 7, 1975, of the Court of Common Pleas, Civil Division, Allegheny County, Pennsylvania at No. 4933, 1974.

COUNSEL

James H. Joseph and Joseph & Hershman, Pittsburgh, for appellant.

Glenn D. McGogney, Pittsburgh, for appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Hoffman, J., concurred in the result. Spaeth, J., filed a concurring and dissenting opinion.

Author: Watkins

[ 251 Pa. Super. Page 569]

This is an appeal from an order of the Court of Common Pleas of Allegheny County dismissing the appeal of the defendants-appellants, Cel-Pek Industries, Inc., from an award of arbitration in favor of the plaintiff-appellee, Augustine K. Lee, individually and trading as Lee's Karate Institute, in the amount of $3000.00.

The plaintiff instituted an action in trespass claiming damages in an amount not to exceed $3000.00. The defendant filed a timely counterclaim of $199.00. The matter was submitted to arbitration and on the day scheduled for the arbitration hearing the appellant and its counsel failed to appear and the arbitrator entered an award in the amount of $3000.00 in favor of the plaintiff and dismissed the counterclaim. The defendant filed a timely notice of appeal and the case was placed for trial.

An appeal from arbitration under the Act of 1836, as amended, 5 P.S. § 71 is tried de novo. Bell v. Shetrom, 214 Pa. Super. 309, 257 A.2d 323 (1969); Lanigan v. Lewis, 210 Pa. Super. 273, 232 A.2d 50 (1967).

In such posture the court listed the case for conciliation hearing and trial on October 7, 1975. Penna. Rules of Civil Procedure 212. Neither the defendant or its counsel was

[ 251 Pa. Super. Page 570]

    present for the hearing and trial and the court after telephoning the defendant, dismissed the appeal.

We sympathize with the trial court in trying to move forward a case that had been properly listed and called. Indeed, when applying court authority inherent in Penna. Rule of Civil Procedure 212, we find that counsel is under the same duty to appear at conciliatory or pre-trial conferences as he is to appear at trial. 2 Anderson Pa. Civil Practice § 212.4. In such cases we believe that Pa. Rule of Civil Procedure 218 applies. This is particularly true in the instant matter since it was called both for conciliation and trial on October 7, 1975. Rule 218 provides as follows:

"Where a case is called for trial, if one party is ready and the other is not ready, without satisfactory excuse being made known to the court, a non-suit may be entered on motion of the defendant, or the plaintiff may proceed to trial, as the case may be. Where the trial proceeds the court may require the prothonotary, or may authorize an ...


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