No. 118 April Term, 1977, Appeal from the Order dated May 5, 1976 and Judgment on the verdict entered July 7, 1976 of the Court of Common Pleas, Civil Division of Allegheny County at No. 2030 January Term, 1973.
Allen N. Brunwasser, Pittsburgh, for appellant.
Joseph E. Schmitt, Pittsburgh, for appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price and Spaeth, JJ. Watkins, former President Judge, and Van der Voort, J., did not participate in the consideration or decision of this case.
[ 253 Pa. Super. Page 247]
This appeal arises from a jury trial ex parte wherein the jury returned a verdict for the plaintiff-appellee. Appellant's motion for new trial and motion for reconsideration were denied and this appeal followed. We affirm the decision of the lower court.
On December 22, 1972, in the Court of Common Pleas of Allegheny County, Dublin Sportswear entered suit in assumpsit against Vincent Charlett for goods sold and delivered. The case was first placed on the jury trial list for April 3, 1975, but was not reached at that time.
Notice appeared in the Pittsburgh Legal Journal on September 23, 1975, that the case had been placed on the trial list for Monday, November 10, 1975, and would be called on Friday, November 7, 1975. Defense counsel, Allen Brunwasser, was engaged in Federal Court on November 7, but asked the Chief Minute Clerk to report him ready to proceed with the case on Monday, November 10. This was done, and both
[ 253 Pa. Super. Page 248]
parties and counsel were present Monday morning. Although a jury was selected expeditiously, the case was not assigned to a judge that day. Lacking a judge available to hear the case, the jury was dismissed and told to return on Wednesday, November 12, Tuesday being Armistice Day.
Some time during the day of November 10, Mr. Brunwasser informed plaintiff's counsel, Joseph Schmitt, that he had several other commitments scheduled for Wednesday, November 12 and would not be able to proceed with the case until mid-morning on Thursday, November 13. Mr. Brunwasser also spoke to the chief minute clerk, Foster Doak, informing him of his other engagements for Wednesday and Thursday. Apparently, Mr. Brunwasser had a federal grand jury session in the morning of November 12, which had been so scheduled since October 30, 1975. He also had an afternoon commitment in Juvenile Court on November 12, and an early morning commitment on Thursday in the Court of Common Pleas. As a result of his conversations with Mr. Brunwasser, plaintiff's counsel spoke with the chief minute clerk and the calendar control judge, who informed him that the case nevertheless remained on the list to proceed on Wednesday morning, as originally scheduled.
On Wednesday, the case was assigned to the courtroom of the Honorable Francis Barry. Only plaintiff's counsel and witnesses were present. Judge Barry telephoned Mr. Brunwasser to tell him the jury was in the room and the court was ready, and Mr. Brunwasser informed the judge of his other commitments for that day. When Mr. Brunwasser refused to appear, trial proceeded without him or his client, and the jury returned a verdict for plaintiff. Mr. Brunwasser reported for trial on Thursday morning, November 13, whereupon he learned of the verdict against his client.
The issue before us is whether, under these particular facts, it was proper for the lower court, after a jury had been picked by plaintiff and defendant, to proceed with a jury trial ex parte because defendant and his counsel did not appear at the ...