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DARLENE M. SNYDER v. PORT AUTHORITY ALLEGHENY COUNTY (10/25/78)

decided: October 25, 1978.

DARLENE M. SNYDER, APPELLANT,
v.
PORT AUTHORITY OF ALLEGHENY COUNTY, APPELLEE



No. 147 April Term, 1978, Appeal from the Order of the Court of Common Pleas of Allegheny County, Pennsylvania, Civil Division, at GD 75-7146, entered August 4, 1977, denying Plaintiff's Motion to Take Off Non-Suit.

COUNSEL

John M. Grubor, Pittsburgh, for appellant.

G. N. Evashavik, Pittsburgh, for appellee.

Jacobs, President Judge, and Hoffman, Cercone, Price, Van der Voort, Spaeth and Hester, JJ. Hoffman, J., did not participate in the consideration or decision of this case.

Author: Cercone

[ 259 Pa. Super. Page 450]

This is an appeal from a refusal of a court en banc in Allegheny County to take off a non-suit entered against the appellant, Darlene Snyder. We affirm the decision of the lower court.

The appellant, Darlene Snyder, brought a suit in trespass against the appellee, the Port Authority of Allegheny County for damages she sustained when a Port Authority trolley hit the rear of her car. The case was originally listed for trial on March 10, 1977. Three days prior to trial, the appellant discharged her then acting attorney, Martin Goldhaber, and retained another attorney, John Grubor, as her counsel. Mr. Grubor filed his appearance with the court on March 7, 1977. At the call of the list on March 10 Mr. Grubor reported the appellant "not ready" and moved for a continuance of the case until the next trial list. The ground for the motion was that Mr. Grubor had inadequate time to prepare the case for trial since he had been retained only three days earlier. The case was continued for seven days until March 17, 1977. On that date, the case was again called for trial and appellant's counsel reported "not ready." The calendar control judge ordered the case for trial. On March 21, 1977, the calendar control judge instructed the chief minute clerk to appear for the appellant, in counsel's absence, to select a jury. The case was assigned to Judge Ralph Smith, Jr. on March 22, 1977 whereupon appellant and her counsel failed to appear. Appellee's motion for non-suit under Pa.R.Civ.P. 218 was granted. Appellant's motion to take off the non-suit was denied and this appeal ensued.

Pa.R.Civ.P. 218 provides that:

"When 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

[ 259 Pa. Super. Page 451]

    the motion of defendant . . . Where the trial proceeds the court may require the prothonotary, or may authorize any attorney of the court, to participate in the drawing of the jury in behalf of the unready party. . . ."

The opinion of the lower court bases its refusal to take off the non-suit on this rule, stating that a "satisfactory excuse" was not made known to the court. The factors the court looked at included appellant's counsel's request for a continuance made twice between March 9 and March 22 on the grounds that he did not have time to prepare,*fn1 despite a 7-day continuance granted to give counsel a two-week period in which to adequately prepare the case since it involved an uncomplicated rear-end collision. The opinion also recognizes that appellant had gone through five lawyers in this case, although only two attorneys appear on the record before us.

Based on this information we are faced with the issue of whether or not the lower court abused its discretion in denying ...


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