No. 784 October Term 1977, Appeal from the Order dated Dec. 23, 1976, of the Court of Common Pleas of Luzerne County, Pa., Civil Action - Law Div., at No. 1305 March 1972.
Barry A. Yelen, Wilkes-Barre, for appellant.
Andrew I. Puhak, Wilkes-Barre, for appellees, Domanosky.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Watkins, former President Judge, did not participate in the consideration or decision of this case.
[ 257 Pa. Super. Page 476]
This is an appeal from the refusal to take off a compulsory non-suit.
Appellant sued appellee in trespass. The case was listed for trial on the civil list for the week of October 14, 1975. At the call of the list, on the morning of October 14, counsel for appellant stated that he was ready to proceed to trial, but that he first had a case in criminal court scheduled for trial that same morning. The civil court judge allowed counsel until 2:00 p. m. to attempt to make arrangements to avoid the conflict. At 2:00 p. m., in recorded proceedings, counsel stated to the civil court judge that he had been unable to find another attorney to handle the criminal case; that he had anticipated that the criminal case would be tried non-jury and thus in all probability would require only a short time to try, but that instead, that morning the criminal court judge had refused to accept the defendant's waiver of jury trial; and that because the civil case was No. 14 on the list for the week, he had not expected it to be reached so early in the week, much less on the first day. For these reasons counsel requested a continuance of the civil case. The civil court judge refused counsel's request for a continuance, and proceeded to enter a compulsory non-suit against appellant.
In its opinion in support of its order refusing to take off the non-suit the lower court gave four reasons for its actions:
First, Mr. Yelen [appellant's counsel] had several weeks' notice of the present civil matter; yet he allowed himself to be engaged as counsel in a criminal matter only a few days prior to October 14, 1975, knowing full well that both the civil and criminal matters were scheduled at the same time on the same date.
Second, this problem arose previously on several occasions with Mr. Barry Yelen and the court indulged him
[ 257 Pa. Super. Page 477]
but cautioned him that it would not tolerate his failure to reconcile his conflicts in scheduling. In other words, Mr. Yelen had several situations like this in the past and took the attitude that he would try either case and let the court decide which one it would have to continue. This attitude is reflected at the bottom of page 4 of the notes of testimony:
"(BY THE COURT) The motion for continuance is denied, and we shall proceed to selection of a jury. MR. YELEN: Your Honor, I would like to point out that I cannot be here, present, and I am going ...