No. 213 October Term 1977, Appeal from the Final Judgment of the Court of Common Pleas of Wayne County, Civil Action, Law, dated Oct. 8, 1976, entered to No. 152 April Term, 1973.
Robert P. Browning, Scranton, for appellants.
Richard D. Ballou, Honesdale, with him William J. Dempsey, Scranton, for appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Jacobs, President Judge, and Van der Voort, J., concur in the result. Price, J., dissents. Watkins, former President Judge, did not participate in the consideration or decision of this case.
[ 256 Pa. Super. Page 204]
The question on this appeal is whether the lower court abused its discretion in failing to grant appellants, Aldo and Veronica Santini, a jury trial.*fn1
Appellee, Hawley Bank, contracted to sell the Santinis a parcel of land, improved with residence and lodge structures, together with a liquor license. The real estate transaction was closed on February 11, 1972, but difficulties were encountered in transferring the liquor license. Assured by the Bank's attorney, who also represented them in the transaction, that the transfer would nonetheless be carried out, the Santinis liquidated other assets to secure capital and spent money refurbishing the residence and the lodge. In the meantime, the liquor license expired. In December, 1972, the Bank succeeded in having the license reinstated and notified the Santinis that it was ready for transfer. The Santinis, however, had by then spent all their funds, had lost
[ 256 Pa. Super. Page 205]
the revenue for the summer season, and were unable to complete the transaction.
On May 2, 1973, the Bank brought an action in ejectment and incorporated a demand for money damages. After preliminary objections, the Bank filed an amended complaint on June 7, 1973. On June 21, 1973, the Santinis filed an answer and new matter, setting forth their claim to ownership of the land, and counterclaiming for money damages arising out of the Bank's alleged breach of contract in being unable to transfer the liquor license sooner. On July 10, 1973, the Bank filed an answer to the new matter and counterclaim. Under Pa.R.Civ.P. 1007.1 the Santinis then had twenty days within which to demand a jury trial. Because of counsel's inadvertence, however, no demand was filed. On October 11, 1973, the Bank asked and received the court's permission to file an amended answer. On October 23, 1973, this amended answer was filed, but it was not properly served, because it was served on the Santinis, not, as required by Pa.R.Civ.P. 1027,*fn2 on the Santinis' counsel, whose address was endorsed on the prior pleading, i.e., on the Santinis' answer, new matter, and counterclaim. Although counsel was present when the Bank asked permission to file the amended answer, the Santinis apparently never notified counsel that the amended answer had been served on them.
On April 11, 1975, the Bank moved for summary judgment. On April 23, 1975, the Santinis petitioned for a jury trial, nunc pro tunc. On June 6, 1975, the Bank's motion and the Santinis' petition were both denied and the case was set for trial on September 8, 1975. During the trial the Santinis' counsel first learned that an amended answer had been filed by the Bank.
The trial judge denied the Bank's demand for possession and assessed damages of $5,000 in favor of the Santinis. The Santinis filed ...