No. 1837 OCTOBER TERM, 1977, Appeal from the Order of the Court of Common Pleas of Philadelphia County, No. 4386 April Term, 1972. Trial Division, Law
M. Patricia Harkins, Lafayette Hill, for appellant.
Steven H. Berkowitz, Philadelphia, for appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Cercone, J., dissents. Price, J., files a dissenting opinion. Watkins, former President Judge, and Hoffman, J., did not participate in the consideration or decision of this case.
[ 264 Pa. Super. Page 77]
The question on this appeal is whether the trial court abused its discretion in proceeding to trial in this assumpsit action in the absence of defendant or its counsel.
We believe there was an abuse of discretion in this case, and we reverse and remand for a new trial.
Most of the pertinent facts are not disputed. The case had originally been submitted to arbitrators, who found for plaintiff. Defendant appealed. In December, 1975, a "Notice to the Bar" appeared in the Legal Intelligencer informing attorneys that all cases on appeal from arbitration would be assigned for trial starting January 5, 1976. A list of the cases included this case. A second notice appeared in the Legal Intelligencer apparently around January 9, 1976, assigning the case for trial on January 16, 1976, before Judge John J. McDevitt III.
Defendant's counsel was a single practitioner who had moved her office in August, 1974, to Montgomery County. She says she did not subscribe to the Legal Intelligencer, and apparently denies actual knowledge that the case would be listed for trial in January, 1976, until she received from plaintiff's attorney a copy of a letter dated January 13, 1976, to Judge McDevitt enclosing plaintiff's trial brief.
On January 14, 1976, she wrote plaintiff's counsel stating that she had been "taken aback" on receipt of his letter of January 13; that she would be on trial in Montgomery County on Friday, January 16, 1976; that she would be "most grateful" if plaintiff's counsel could arrange for rescheduling for a date certain, and that she might need "several weeks' notice" to secure the appearance of her
[ 264 Pa. Super. Page 78]
principal witness. This letter of January 14 was apparently received by plaintiff's counsel on January 16, 1976, after the case had been called by Judge McDevitt that morning and postponed until Monday, January 19. (See Attorney Berkowitz' affidavit, par. 9) Defendant's counsel did telephone Judge McDevitt's chambers on the morning of January 16 and advised of her problem. Presumably the Judge postponed the matter over the weekend in response to this telephone call (see the Court's Opinion, p. 2), and Mr. Berkowitz was asked by the Judge to inform defendant's counsel, Mrs. Harkins. (Berkowitz affidavit, par. 8.)
On the morning of January 19, 1976, Harkins did not appear when the case was called.
A colloquy took place between the Judge and Berkowitz. The latter stated (N.T. pp. 2-4) on the record that he had attempted about a dozen times in the past week to contact Harkins and her client, left telephone messages, notified Harkins "by letter on Monday (January 12, 1976) and by letter this past Friday (January 16, 1976) . . . that it would be listed today at 10:00 a. m."; that Harkins' secretary, by telephone, had asked that a new date be set; that defendant needed at least two weeks to locate a witness in another state; and Berkowitz requested that "the case go forward this morning."
The Judge (N.T. p. 5), citing the court's growing backlog, said: "I have heard nothing directly from Ms. Harkins.*fn1 . . . She said she was engaged in Montgomery County. We are not ...